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S. HRG. 114–92 

SURFACE TRANSPORTATION REAUTHORIZATION— 

OVERSIGHT AND REFORM OF THE FEDERAL 

MOTOR CARRIER SAFETY ADMINISTRATION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON SURFACE TRANSPORTATION 

AND MERCHANT MARINE INFRASTRUCTURE, 

SAFETY AND SECURITY 

OF THE

COMMITTEE ON COMMERCE, 

SCIENCE, AND TRANSPORTATION 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

MARCH 4, 2015 

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

( 

(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

JOHN THUNE, South Dakota, Chairman 

ROGER F. WICKER, Mississippi 

ROY BLUNT, Missouri 

MARCO RUBIO, Florida 

KELLY AYOTTE, New Hampshire 

TED CRUZ, Texas 

DEB FISCHER, Nebraska 

JERRY MORAN, Kansas 

DAN SULLIVAN, Alaska 

RON JOHNSON, Wisconsin 

DEAN HELLER, Nevada 

CORY GARDNER, Colorado 

STEVE DAINES, Montana 

BILL NELSON, Florida, Ranking 

MARIA CANTWELL, Washington 

CLAIRE MCCASKILL, Missouri 

AMY KLOBUCHAR, Minnesota 

RICHARD BLUMENTHAL, Connecticut 

BRIAN SCHATZ, Hawaii 

EDWARD MARKEY, Massachusetts 

CORY BOOKER, New Jersey 

TOM UDALL, New Mexico 

JOE MANCHIN III, West Virginia 

GARY PETERS, Michigan 

DAVID SCHWIETERT, Staff Director 

NICK ROSSI, Deputy Staff Director 

REBECCA SEIDEL, General Counsel 

JASON VAN BEEK, Deputy General Counsel 

KIM LIPSKY, Democratic Staff Director 

CHRIS DAY, Democratic Deputy Staff Director 

CLINT ODOM, Democratic General Counsel and Policy Director 

SUBCOMMITTEE ON SURFACE TRANSPORTATION AND MERCHANT 

MARINE INFRASTRUCTURE, SAFETY AND SECURITY 

DEB FISCHER, Nebraska, Chairman 

ROGER F. WICKER, Mississippi 

ROY BLUNT, Missouri 

KELLY AYOTTE, New Hampshire 

JERRY MORAN, Kansas 

DAN SULLIVAN, Alaska 

RON JOHNSON, Wisconsin 

DEAN HELLER, Nevada 

STEVE DAINES, Montana 

CORY BOOKER, New Jersey, Ranking 

MARIA CANTWELL, Washington 

CLAIRE MCCASKILL, Missouri 

AMY KLOBUCHAR, Minnesota 

RICHARD BLUMENTHAL, Connecticut 

BRIAN SCHATZ, Hawaii 

EDWARD MARKEY, Massachusetts 

TOM UDALL, New Mexico 

(III) 

C O N T E N T S 

Page 

Hearing held on March 4, 2015 .............................................................................. 1 

Statement of Senator Fischer ................................................................................. 1 

Statement of Senator Booker .................................................................................. 2 

Statement of Senator Nelson .................................................................................. 34 

Prepared statement .......................................................................................... 34 

Statement of Senator Cantwell .............................................................................. 37 

Statement of Senator Klobuchar ............................................................................ 41 

Statement of Senator Daines .................................................................................. 42 

WITNESSES

Hon. T.F. Scott Darling III, Acting Administrator, Federal Motor Carrier 

Safety Administration, U.S. Department of Transportation ............................ 4 

Prepared statement .......................................................................................... 5 

Joseph W. Come ́, Deputy Principal Assistant Inspector General for Auditing 

and Evaluation, U.S. Department of Transportation ........................................ 10 

Prepared statement .......................................................................................... 12 

Susan A. Fleming, Director, Physical Infrastructure Issues, U.S. Government 

Accountability Office ............................................................................................ 17 

Prepared statement .......................................................................................... 19 

Hon. Christopher A. Hart, Acting Chairman, National Transportation Safety 

Board ..................................................................................................................... 23 

Prepared statement .......................................................................................... 25 

APPENDIX

Response to written question submitted to Susan A. Fleming by: 

Hon. Deb Fischer .............................................................................................. 45 

Hon. Kelly Ayotte ............................................................................................. 45 

Hon. Cory Booker ............................................................................................. 45 

Response to written questions submitted to Hon. T.F. Scott Darling III by: 

Hon. Richard Blumenthal ................................................................................ 46 

Hon. Cory Booker ............................................................................................. 48 

Response to written questions submitted by Hon. Maria Cantwell to Hon. 

Christopher A. Hart ............................................................................................. 55 

(1) 

SURFACE TRANSPORTATION 

REAUTHORIZATION—OVERSIGHT AND 

REFORM OF THE FEDERAL MOTOR CARRIER 

SAFETY ADMINISTRATION 

WEDNESDAY, MARCH 4, 2015 

U.S. SENATE, 

SUBCOMMITTEE ON SURFACE TRANSPORTATION AND

MERCHANT MARINE INFRASTRUCTURE, SAFETY AND SECURITY,

COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:06 a.m. in room 

SD–253, Russell Senate Office Building, Hon. Deb Fischer, Chairman of the Subcommittee, presiding. 

Present: Senators Fischer [presiding], Booker, Nelson, Ayotte, 

Daines, Cantwell, and Klobuchar. 

OPENING STATEMENT OF HON. DEB FISCHER, 

U.S. SENATOR FROM NEBRASKA 

Senator FISCHER. Good morning. The hearing will come to order. 

I am pleased to convene the Senate Subcommittee on Surface 

Transportation and Merchant Marine Infrastructure Safety and Security for our third hearing entitled ‘‘Surface Transportation Reauthorization: Oversight and Reform of the Federal Motor Carrier 

Safety Administration.’’ I also would like to take a moment to note 

that this is our first official hearing, with Senator Cory Booker as 

the Subcommittee’s Ranking Member. 

Welcome, Senator. It is just such a pleasure to have you as 

Ranking Member and I look forward to working with you on these 

issues. 

Our nation’s economy depends upon safe, timely, and efficient 

trucking. Nearly 500,000 truckers operate on America’s roads 

today. From globally recognized companies to smaller owner-operators with a single truck, America’s truckers move billions’ worth of 

goods and materials each year. 

Established in 2000, the Federal Motor Carrier Safety Administration plays a vitally important role in promoting safety on our 

Nation’s roads. Along with many of my colleagues and the trucking 

industry, I share the FMCSA’s commitment to increasing the safety 

of our Nation’s roads. We must never lose sight of this goal. 

At the same time, Members of Congress, independent agencies 

including the GAO, the NTSB, and the DOT Inspector General, 

and stakeholders, have expressed serious concerns with the agency’s flawed approach in a number of areas. Some of the FMCSA’s 

2 

actions over the past several years, however, challenge our shared 

goal of enhancing safety. 

For example, FMCSA issued the final 34-hour restart rule in 

2013 with complete disregard for congressionally mandated requirements for the study on the rule’s impact. When the study was 

eventually issued several months late, the sample size was not representative of this diverse industry. In addition, serious concerns 

were raised about the rule’s perverse impact on safety because, in 

effect, it pushed drivers onto the roads during workers, students, 

and families’ mornings commute. 

In 2014, the GAO investigated the methodology behind FMCSA’s 

Compliance, Safety and Accountability program. Inaccurate CSA 

scores, publicly available online, have cost company contracts and 

raised insurance rates; all of this has occurred without a clear correlation to increasing highway safety. 

When confronted with these findings, FMCSA completely disregarded GAO’s recommendations to address flaws in CSA’s implementation. Major stockholders, including law enforcement, requested that FMCSA remove CSA scores from the public view. 

As Chairman of this Subcommittee, I intend to author legislation 

to reform the FMCSA and ensure that the process is more inclusive 

of Congress and stakeholders. My efforts to reform the FMCSA’s 

regulatory process will include two major principles. First, guidance review. FMCSA should complete a periodic review of its current technical and programmatic guidance and provide transparency to the public on this review. 

Second, regulatory framework going forward. FMCSA must conduct a more robust cost-benefit analysis that represents carriers 

from a wide variety of business models. If necessary, the agency 

should also conduct a real-world study of the proposed regulation. 

Most importantly, throughout its process, FMCSA must demonstrate more transparency to Congress and stakeholders. We have 

to keep that in mind. As the agency is funded through the Highway 

Trust Fund, transparency is particularly important with regard to 

funding for the agency’s rulemaking. 

Though the burden of FMCSA’s mission is immense, Congress 

must reform the agency to ensure higher levels of trust, collaboration, and ultimately more effective regulations to keep our Nation’s 

roads safe. 

I would now like to invite my Ranking Member, Senator Booker, 

to offer opening remarks. 

STATEMENT OF HON. CORY BOOKER, 

U.S. SENATOR FROM NEW JERSEY 

Senator BOOKER. Thank you very much, Senator Fischer. And I 

am thrilled, frankly, to have you as the Chair of this Subcommittee 

and know that we can have a robust partnership because we share 

so many of the same goals. 

I think any American shares the goals of making the trucking industry, which is so vital to our nation’s economy, not just good and 

not just meeting minimum standards but, frankly, see what we can 

do to make it even more robust as a more central aspect of our 

economy. And this is why I share with my Chair a number of 

strong feelings, from figuring out ways to look at technology and 

3 

how that can aid and impact and improve the industry, to even 

looking at substantive ways to improve our infrastructure so that 

the industry and consumers and all of us reap the benefit. 

Trucking is simply a vital component of our transportation network. And I look forward to doing everything possible to supporting 

an effort to make sure that goods are shipped efficiently and safely 

throughout the entire distribution network. In my state, alone, it 

is very critical because it provides over 180,000 jobs and contributes upwards of $700 million in state and Federal taxes. That is 

a good thing. 

Now, with all of that importance and all the opportunities to 

seize, there are still serious issues about truck safety. I am looking 

forward to the conversation today and working with my Chair to 

get to the bottom of very key issues and questions. 

We all know what happened in New Jersey last year that 

brought a lot of this into the spotlight. It was a high-profile accident that occurred, killing one person and injuring several others. 

According to the NTSB preliminary report on the accident, the 

truck was traveling 20 miles per hour over the speed limit, and the 

driver was very close to hitting his daily hours of service limit. 

There have also being reports that the driver may have been 

awake for more than 24 hours. This accident brought a flurry of 

media attention, but we all know this is just one example of so 

many heartbreaking accidents that involve trucks and the incredible impact they have in devastating people’s lives as well as costing the greater public tremendous, tremendous cost. 

I live in the Northeast Corridor and this is where New Jersey resides. It is home to one of the most heavily traveled stretches of 

highway in the country. Each year, nationally, nearly 4,000 people 

are killed in truck crashes and over 100,000 people are injured. 

That is unacceptable to every American. 

From 2009 to 2012, truck crashes, crash injuries, increased by 40 

percent. Increased by 40 percent. And, fatalities increased by 16 

percent. This is absolutely unacceptable. This cannot simply be the 

cost of doing business. We shouldn’t just resign ourselves to this 

harsh and difficult and tragic reality. There are steps that we can 

take, reasonable steps, common sense stuff, that we can take to address this. There is no place on our roads for tired truckers. And 

I applaud the Department of Transportation for working to overcome, working really for over a decade, to overcome the challenges 

that result in fatigue. The rules that we put in place were a compromise and a balance of vital safety objectives. I was against an 

appropriation rider that was added, frankly, to strip some of those 

enforcement rules. We must focus on making sure that we are 

doing the right thing for safety. 

I also have other concerns, which I hope we will get to as well, 

on there. Concerns about the longer and heavier trucks on a road, 

the minimum insurance levels, and even driver pay; just to name 

a few. 

But I want to thank the Chair, Senator Fischer, for calling this 

hearing. And I really look forward to hearing from our witnesses 

today about how we can address these issues and achieve our common goals and aspirations not only in the Senate but, really, aspirations that are common for all Americans. 

4 

Thank you. 

Senator FISCHER. Thank you, Senator Booker. I do thank you for 

your comments. You and I share many of the same goals, and I 

know that we can work together and reach a compromise that is 

going to make our roads safer, and also use common sense measures so that we don’t penalize businesses when they are providing 

a service and are providing a safe service. So I look forward to that. 

Senator BOOKER. For that, I wore my red tie today. 

Senator FISCHER. I appreciate that. Go big red. 

[Laughter.] 

Senator FISCHER. Next, I would like to welcome the panel. I will 

give the introductions and then we’ll start with your information 

that you have for us. 

First, we have Mr. Scott Darling III. Mr. Darling is the Acting 

Administrator of the Federal Motor Carrier Safety Administration 

in the U.S. Department of Transportation. 

Next, Mr. Joseph Come ́? 

Mr. COME ́. Correct. 

Senator FISCHER. Mr. Come ́ is the Deputy Principle Assistant Inspector General for Auditing and Evaluation in the Office of Inspector General. 

Ms. Susan Fleming. Ms. Fleming is the Director of the U.S. Government Accountability Office. 

And, the Honorable Christopher Hart. Mr. Hart is the Acting 

Chairman of the National Transportation Safety Board. 

Welcome to you all. 

And Mr. Darling, if you could start with your comments please? 

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

ADMINISTRATOR, FEDERAL MOTOR CARRIER SAFETY 

ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION 

Mr. DARLING. Good morning, Chairman Fischer and Ranking 

Member—— 

Oh, I’m sorry. 

Good morning, Chairman Fischer and Ranking Member Booker 

and members of the Subcommittee. It is an honor to be here today 

with you to discuss the GROW AMERICA Act and truck and bus 

safety. 

Safety is the Department of Transportation’s top priority. Since 

FMCSA was established 15 years ago, the number of lives lost in 

large truck and bus-related crashes has decreased 24 percent. 

While this represents significant progress, more must be done. Because this is my first appearance before you, let me offer my vision. 

Simply put, I want every bus driver to transport their passengers 

safely and every truck driver to make their runs safely before returning home to their families. 

To achieve FMCSA’s safety mission to reduce crashes and fatalities involving commercial motor vehicles, we are guided by three 

core principles. First, to raise the bar to entry into the motor carrier industry. Second, to require high safety standard to remain in 

the industry. And third, to remove high-risk carriers and drivers 

from our roadways. 

We know there is no one-size-fits-all approach to overseeing more 

than a half a million interstate motor carriers and almost 6 million 

5 

commercial motor vehicle drivers that operate on our roadways. 

That is why provisions in the GROW AMERICA Act are crucial to 

enhancing our enforcement tools and streamlining our grant programs. We look to these proposals to give us, and our law enforcement partners, increased flexibility and to tailor funding to conditions on the ground. The act builds on FMCSA’s continued motor 

carrier safety efforts by one, expanding locations where inspections 

may occur and two, employing more effective investigation methods 

in strengthening the agency’s oversight authority. 

The GROW AMERICA Act will also allow us to prosecute motor 

carriers that knowingly and willingly violate an Imminent Hazard 

Out-of-Service Order issued to protect the traveling public from 

harm. Because enforcement is important, we are working to focus 

our limited resources on identifying unsafe carriers from the vast 

majority of safe ones. 

One of the key tools in our toolbox is the Compliance Safety and 

Accountability program, or CSA. CSA features the Safety Measurement System, or SMS, that helps us prioritize carriers for enforcement interventions. The idea is to intervene with an at-risk carrier 

to bring them into compliance with safety regulations, or take them 

off the road before a crash occurs. We have been working with our 

stakeholders to make sure that CSA and SMS data is thorough and 

complete. 

Finally, we have a number of key safety initiatives underway to 

ensure that commercial truck and bus drivers are medically fit and 

free of alcohol and drugs. Nearly 40,000 health officials today are 

listed on the National Registry of Certified Medical Examiners. We 

are well underway toward establishing a Drug and Alcohol Clearinghouse to help carriers ensure that drivers and employers are 

compliant and safe. 

We will also soon publish a final rule on electronic logging devices to reduce paperwork and improve efficiency for both carriers 

and law enforcement officers at the roadside. 

Thank you, Chairman Fischer and Ranking Member Booker, for 

this opportunity to be here today. I look forward to having a full 

and open discussion with you and my fellow panelists about the 

common sense ways we can work toward improving highway safety 

and saving lives. 

I look forward to answering your questions. 

[The prepared statement of Mr. Darling follows:] 

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

FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, U.S. DEPARTMENT OF

TRANSPORTATION

Chairman Fischer, Ranking Member Booker, and Members of the Subcommittee, 

thank you for the opportunity to speak to you today on the Administration’s proposal to reauthorize the commercial motor vehicle (CMV) safety program, included 

in the GROW AMERICA Act. 

Safety is the Department of Transportation’s top priority. Since the Federal Motor 

Carrier Safety Administration (FMCSA) was established in 2000, the number of 

lives lost in large truck and bus related crashes has decreased 24 percent, from 

5,620 in 2000 to 4,251 in 2013. While this represents significant progress, more 

must be done. Every life is precious and the Department is committed to reducing 

the number of crashes, injuries and fatalities involving commercial motor vehicles. 

6 

GROW AMERICA Act 

The provisions proposed in the GROW AMERICA Act build on the Agency’s three 

core safety principles: (1) raise the bar to enter the motor carrier industry; (2) require high safety standards to remain in the industry; and (3) remove high-risk carriers, drivers, and service providers from the industry. 

The GROW AMERICA Act includes measures that will empower State and local 

communities to help achieve our shared goals through more streamlined and efficient grant programs. The Act will also build on FMCSA’s continued, unprecedented 

motorcoach safety efforts by expanding locations where inspections may occur and 

will provide new authority over brokers who arrange passenger transportation. Furthermore, FMCSA proposes to promote safety while also easing the economic stress 

on long-distance truck and bus drivers, including thousands of small businesses, by 

ensuring they receive fair compensation for the hours they work. 

Motorcoach Safety 

Bus travel is increasingly popular because it is a convenient, inexpensive option 

for many people, including students, groups and families. FMCSA is committed to 

raising the bar for safety in this highly competitive and rapidly changing industry 

by employing more effective investigation methods and strengthening the Agency’s 

oversight authorities. Last year, FMCSA stepped up its enforcement efforts, shutting down more than 50 unsafe bus companies that put passengers at risk. FMCSA 

also increased its efforts to educate the public on safe motorcoach travel. 

Expands Locations for Motorcoach Inspections: To build on this unprecedented 

motorcoach safety effort, the GROW AMERICA Act will clarify and expand the locations at which motorcoach inspections may occur. The GROW AMERICA Act will 

clarify that inspectors may inspect motorcoaches at designated sites equipped with 

adequate food, shelter and sanitation facilities to accommodate passengers during 

the process. 

Provides Jurisdiction Over Motorcoach Brokers: The GROW AMERICA Act will 

also provide FMCSA with jurisdiction over brokers of passenger transportation. This 

provision will enhance FMCSA’s ability to prevent unsafe bus companies from reorganizing themselves as unregulated ‘‘brokers.’’ Additionally, requiring bus brokers 

to comply with the DOT’s commercial registration requirements will help ensure 

that they are authorized to operate safely in interstate commerce. The change will 

also provide greater transparency for consumers who are booking bus travel. 

Allows Criminal Prosecution for Unscrupulous Carriers: Finally, the GROW 

AMERICA Act will take stronger steps to prevent unscrupulous motor carriers from 

skirting FMCSA enforcement actions by allowing for criminal prosecution of a person who knowingly and willfully violates an imminent hazard out-of-service (OOS) 

order issued to prevent the death or serious physical harm to the public. 

Safety-Based Improvements to Compensation for Long-Distance Truck & Bus Drivers: Many over-the-road truck and bus drivers are compensated by the mile or on 

a fixed-rate per load. As a result, they are not paid for extended periods of time 

while waiting for shipments to be loaded or unloaded at shippers’ or receivers’ facilities. Similarly, over-the-road motorcoach drivers are often not compensated through 

an hourly wage. As a result, they often face pressure to drive beyond hours-of-service limitations as a matter of economic necessity, risking driver fatigue and jeopardizing highway safety in the process. The GROW AMERICA Act addresses these 

problems by providing the Secretary authority to issue regulations that would require motor carriers to compensate drivers for detention time and other similar nondriving work periods at a rate that is at least equal to the Federal minimum wage. 

Improvements to the Motor Carrier Safety Grants 

The GROW AMERICA Act will also streamline and consolidate FMCSA safety 

grant programs—a change that will reduce redundant grant application submissions, reviews, awards approvals, vouchering and oversight time, and thus increase 

dramatically efficiencies not only for FMCSA but for its State partners. Among 

other changes, the Motor Carrier Safety Assistance Program (MCSAP) will be restructured to include the current New Entrant and Border Enforcement grant programs. While the high-priority program will continue under MCSAP, the current 

safety data improvement grant program will be absorbed into the high-priority program to avoid duplication. In addition, the Commercial Vehicle Information Systems 

and Networks (CVISN) grant program will be replaced with a new Innovative Technology Program, and additional flexibility will be available to address eligible activities under the Commercial Driver’s License program improvement grant program. 

As a condition of full MCSAP funding, every state will be required to participate 

in the Performance and Registration Information Systems Management Program 

(PRISM) within three years of enactment, thus expanding the number of states that 

7 

can suspend or revoke the vehicle registration of carriers subject to FMCSA out-ofservice orders. States will also gain the ability to use MCSAP funds to conduct reviews of household goods carriers, brokers, and freight forwarders, protecting the 

public from predatory practices. The Act will provide a new minimum Federal share 

of 85 percent, a funding level applied to each of FMCSA’s grant programs. The 

Agency will also have the ability to withhold incremental amounts of MCSAP funding for State non-compliance with grant conditions, rather than being required to 

withhold either the full amount or none at all. This added tool will allow FMCSA 

to address compliance issues while allowing states sufficient funds to continue critical safety activities. 

MAP–21 Implementation and Other Priorities 

FMCSA is working to implement the provisions of the Moving Ahead for Progress 

in the 21st Century Act (MAP–21), as well as advance core safety initiatives including the Compliance, Safety, Accountability (CSA) program, and hours-of-service 

(HOS) research. 

Compliance, Safety, Accountability 

CSA is the cornerstone of FMCSA’s compliance model to improve CMV safety and 

reduce large truck and bus crashes, injuries, and fatalities on our Nation’s highways. CSA consists of its Safety Measurement System (SMS) to identify companies 

for enforcement interventions, a wide array of interventions that target carriers’ 

safety performance and compliance problems, and a new methodology (to be proposed in future rulemaking) to determine the safety fitness of motor carriers. 

Given the size of our Federal workforce and the very limited resources of our 

State enforcement partners relative to our regulated population, it is imperative 

that we apply our resources efficiently. The Agency, therefore, utilizes SMS to identify noncompliant and unsafe companies to prioritize them for enforcement interventions. FMCSA continues to improve SMS to identify those motor carriers that pose 

the greatest risk to safety. Our responsiveness to industry, safety advocates, oversight agencies and Congress continually prompts new and revised policies, reports, 

and changes to the SMS. Last year, we announced changes to our adjudicated violations process. Since August 2014, motor carriers and drivers have been able to request updates to their data through the DataQs process to reflect when the driver 

or carrier is found not guilty or a violation is changed or dismissed in court. 

This spring, the Agency will announce additional changes to SMS. These changes 

will strengthen our ability to identify companies for investigation before they are 

involved in a crash. We will publish these changes in the Federal Register and provide the public an opportunity to comment before finalizing. 

Recently, we announced the results of our crash weighting research, which addressed the feasibility of using a motor carrier’s role in crashes as an indicator of 

future crash risk. The study considers the use of police accident reports in determining crash accountability and the reliability of using crash involvement or crash 

weighting as an indicator of future crash risk. We are currently receiving comments 

on this issue and will determine next steps based on that feedback. We published 

the notice in January, and the comment period runs through March 25. 

We continue to work toward publication of a proposed rule that would increase 

the use of inspection data in making safety fitness determinations for motor carriers. The Safety Fitness Determination proposal will include a fixed, non-relative 

failure standard and will take into account recommendations for larger amounts of 

data to make accurate determinations of a carrier’s fitness to operate. 

Importantly, as is shown by the figure below, carriers identified as having one or 

more areas above the established thresholds in SMS have crash rates significantly 

higher than carriers that aren’t identified. As the number of Behavior Analysis and 

Safety Improvement Categories (BASICs) over threshold increase, so does the crash 

rate. 

8 

The issue of data sufficiency has received a lot of attention recently. Based upon 

studies completed by the Agency and independent researchers, the SMS is effective 

at identifying carriers that are engaging in behaviors likely to cause a crash. 

FMCSA, our State partners, the Government Accountability Office (GAO), the Office 

of Inspector (OIG), and the National Transportation Board (NTSB) all share a common goal of finding the most effective tools for identifying high risk carriers and 

taking appropriate enforcement actions. While we all share that goal, we have also 

had clear differences over specific methodologies for prioritizing a carrier as higher 

crash risk and for taking action. For example, a February 2014 GAO study recommended that the Agency revise the SMS to account for what it sees as data limitations. The GAO developed a methodology that only considers carriers that have 

at least 20 inspections or 20 vehicles and eliminates the use of safety event groups. 

That approach runs counter to the goals of SMS, which identifies dangerous violation patterns much earlier. The overwhelming majority of motor carriers—more 

than 90 percent of our regulated population—never reach the 20 observation level 

during the relevant measurement period. Under GAO’s approach to SMS, the safety 

performance of all these companies would be simply ignored. The public demands 

a proactive approach, rather than waiting for 20 –observation—or a crash—before 

we intervene. 

The SMS is effective at identifying carriers that are more likely than others to 

crash because the carriers are engaging in risky behaviors. The Agency is working 

hard to intervene with those carriers exhibiting high risk behaviors in the most efficient manner possible and to engage the companies before they have a crash. 

Hours-of-Service 

Due to the importance of driver fatigue as a safety risk, we issued new rules regarding drivers’ hours of service in 2011. The final rule required truck drivers who 

use the ‘‘34-hour restart’’ provision to maximize their weekly work hours to limit 

the restart to once a week and to include in the restart period at least two nights 

off duty from 1:00 to 5:00 a.m., when our 24-hour body clock needs and benefits 

from sleep the most. The provision was included in response to research showing 

that drivers who routinely work overnight schedules and sleep during the daytime 

tend to ‘‘switch their sleep clocks’’ on weekends while they are with their families, 

doing errands, and so on. As a result, they often get only one night of sleep during 

the 34-hour break—which research shows is insufficient to eliminate fatigue—before 

climbing back into the truck Sunday evening. 

The rule was structured with flexibility such that each driver would use the restart based on his or her specific schedule for the week which would establish the 


304DARL1.eps
9 

point at which the driver would determine whether a 34-hour restart was needed, 

and if so, when it would begin and end. 

As mandated by MAP–21, the Agency conducted a field study which expanded 

upon the results of the laboratory-based study relating to CMV driver fatigue. This 

research was conducted between January and July 2013, and not as an aspect of 

our regulatory process. MAP–21 did not require the study to address the impact of 

the new rule on the volume of truck traffic during daytime hours. However, the 

Agency is not aware of study results or data that suggests the 2011 rule forced drivers to shift their work schedules from nighttime operations to daytime operations. 

On December 16, 2014, the Congress enacted the Consolidated and Further Continuing Appropriations Act, 2015, which included provisions restoring the pre-2013 

restart rule, pending further study of the post-2013 rule. In particular, the once-aweek limitation on the use of the restart and the requirement for two nights off duty 

were suspended until the end of this fiscal year. FMCSA issued a notice in the Federal Register on December 17 suspending the 2013 restart provisions. Those restart 

provisions have no force or effect from the date of enactment of the Appropriations 

Act through the period of suspension, and have been replaced with the previous restart provisions that were in effect on June 30, 2013. FMCSA notified motor carriers 

and commercial drivers, and trained thousands of State Motor Carrier Safety Assistance Program grant recipients, and other law enforcement personnel on these immediate enforcement changes. 

The Agency selected the Virginia Tech Transportation Institute (VTTI) to conduct 

the study mandated by Congress. We have worked diligently to reach out and recruit potential drivers from all segments of the trucking industry as the statute requires. VTTI has a solid national reputation for conducting vehicle-related safety 

and driver fatigue research. VTTI pioneered the use of naturalistic driving studies 

and has successfully carried out similar FMCSA projects for the past 10 years. As 

required by Congress, the study methodology is now undergoing review by the DOT 

Office of Inspector General. This driver restart study is the largest naturalistic 

study of its kind that FMCSA has ever undertaken. We anticipate releasing the 

findings later in the year. 

Electronic Logging Devices 

MAP–21 included a provision mandating the use of electronic logging devices 

(ELD) for those CMV drivers who are required to keep a record of duty status under 

the HOS regulations. FMCSA is preparing to issue its final rule on ELDs this fall. 

The ELD rule will require CMV drivers who are now required to keep a record of 

duty status under the HOS regulations to maintain these records electronically. 

ELDs will automate HOS tracking, making it easier for drivers to log hours and 

more difficult to conceal violations of the hours-of-service rules. Once promulgated, 

the rule will help businesses cut paperwork and will increase the efficiency of law 

enforcement personnel and safety inspectors. The rule will also ensure that the devices are not used to harass drivers. By improving HOS compliance, ELDs are expected to prevent approximately 1,400 crashes, 20 fatalities, and more than 400 injuries each year, with a net economic savings of close to $450 million. 

National Registry of Certified Medical Examiners 

In May 2015, FMCSA will celebrate the first anniversary of the full implementation of the National Registry of Certified Medical Examiners (National Registry). As 

mandated by SAFETEA–LU and MAP–21, the National Registry rule requires all 

Medical Examiners (ME) who conduct physical examinations and issue medical certifications for interstate CMV drivers to complete training on FMCSA’s physical 

qualification standards, pass a certification test, and demonstrate competence 

through periodic training and testing. Currently, all CMV drivers whose medical 

certification expires must use MEs on the National Registry for their examinations. 

Between May 2014 and November 2014, more than 2.4 million examinations of 

commercial motor vehicle drivers were conducted by healthcare professionals on the 

National Registry. We anticipate receiving data for December 2014 and January 

2015 by the end of March. The National Registry has been a great success. To date, 

we have reached our goal of 40,000 certified MEs on the National Registry. Drivers 

can now find MEs throughout the Nation who can competently perform their medical examination. Any physician or other qualified medical professional (such as a 

physician’s assistant or an advanced practice nurse) licensed by a State to conduct 

physical examinations can be listed on the National Registry if they are trained, 

tested, and certified. 

With the help of the OIG and our State law enforcement partners, we have identified and prosecuted uncertified MEs and others who have committed fraud or otherwise abused the physical qualifications process. 

10 

We are preparing to issue a follow-on ‘‘National Registry 2’’ rulemaking that will 

require MEs to submit the medical certificate information for CMV drivers to 

FMCSA on a daily basis. The Agency will then be able to promptly transmit medical 

certificate information electronically to the State Driver Licensing Agencies for the 

CDL holders. This will dramatically decrease the chance of drivers falsifying medical cards and will lessen the amount of paperwork required currently. 

Drug and Alcohol Clearinghouse 

To further prevent crashes, we must ensure that CDL holders are sober and drugfree. We published a Notice of Proposed Rulemaking (NPRM) on the Drug and Alcohol Clearinghouse (Clearinghouse) to implement the MAP–21 provision on this subject. The Clearinghouse would require truck and bus companies (and other entities 

responsible for managing DOT drug & alcohol testing programs) to report verified 

positive drug and alcohol test results, test refusals, negative return-to-duty test results and follow-up testing. This information would populate the Clearinghouse 

database with positive drug and alcohol test information on CDL holders. This information would remain in the Clearinghouse for a requisite period of time after the 

CDL-holder completes the return-to-duty rehabilitative process, which allows the 

driver to become re-qualified to operate a CMV. Once the Clearinghouse is fully implemented, employers would be required to conduct pre-employment searches in the 

repository as part of the hiring process for CDL drivers and annual searches on current employee drivers. The final rule is in development and is scheduled to be published later this year. 

Entry-Level Driver Training Requirements 

MAP–21 directed the Agency to issue final regulations to require entry-level training for drivers who require a CDL and for those upgrading from one class of CDL 

to another. The Agency’s rulemaking must address knowledge and skills for safe operation and other issues. In 2013, the Agency held listening sessions and asked our 

Motor Carrier Safety Advisory Committee (MCSAC) to provide recommendations on 

ELDT. These sessions and the MCSAC gave the Agency substantial information 

about training for entry-level CDL applicants. In August, the Agency engaged the 

services of a convener to assess the feasibility of conducting a negotiated rulemaking 

(Reg Neg) to implement this provision. The convener recommended that the Agency 

proceed with a Reg Neg on ELDT. In February, the Agency announced the appointment of 26 stakeholders to participate in the negotiated rulemaking committee. 

Known as the Entry-Level Driver Training Advisory Committee (ELDTAC), the 

Committee held its first meeting last week, on February 26–27. The Department 

plans an accelerated Reg Neg to reach consensus among these key stakeholders so 

that we can issue a Notice of Proposed Rulemaking (NPRM) by fall 2015 and a final 

rule by 2016. 

We hope these changes will make it easier for all of our stakeholders, from drivers 

and carriers to enforcement partners, to work together toward our shared safety 

goals. 

Conclusion 

Thank you, Chairman Fischer and Ranking Member Booker, for the opportunity 

to discuss Federal motor carrier safety programs. We look forward to working with 

you on enacting the next surface transportation bill to improve safety, reduce crashes, prevent injuries, and save lives on our Nation’s highways. 

Senator FISCHER. Thank you, Mr. Darling. 

Mr. Come ́. 

STATEMENT OF JOSEPH W. COME ́ , DEPUTY PRINCIPAL 

ASSISTANT INSPECTOR GENERAL FOR AUDITING 

AND EVALUATION, U.S. DEPARTMENT OF TRANSPORTATION 

Mr. COME ́. Chairman Fischer, Ranking Member Booker, and 

members of this Subcommittee, thank you for inviting me to testify 

today. 

I will focus on three things. First, what the Federal Motor Carrier Safety Administration has done and what it still needs to do 

to address our work in the IG’s Office on the Compliance Safety Accountability program, or CSA. Second, challenges with addressing 

11 

reincarnated carriers. And third, our ongoing work to bolster 

FMCSA’s enforcement of motor carrier safety regulations. 

CSA is intended to target enforcement intervention, such as onsite reviews, on higher risk motor carriers. CSA’s success depends 

in part on complete, correct data reporting from the carriers and 

the states. We reported last March that about half of roughly 

800,000 carriers had not updated their data between January 2011 

and February 2013 as required. To respond to this longstanding 

concern on carrier-reported data, FMCSA began to automatically 

take action against carriers for not updating their data. And by 

April 2014, the agency had deactivate over 20,000 U.S. DOT numbers for carriers with outdated data. 

Information systems play a key role in CSA’s operations. In response to weaknesses we identified, such as incomplete documentation for CSA’s IT validation and testing processes, FMCSA developed complete system requirements and a configuration management plan. However, sustained attention in this area is important 

to ensure effective control as staff turns over and systems change. 

Despite these actions, timely and effective implementation of enforcement interventions within CSA remains a challenge largely 

due to delays in developing CSA’s intervention software. At the 

time of our March 2014 report, only 10 states had implemented all 

interventions and FMCSA does not expect to fully deploy the intervention software needed until 2016; more than 3 years passed the 

first estimated release date. In the meantime, the extent to which 

FMCSA and its state partners can monitor and correct higher risk 

carriers will be reduced. 

In regards to reincarnated carriers, these carriers who often use 

aliases, or different business addresses to evade out-of-service orders and other enforcement actions, continue to be a concern. A 

number of our criminal investigations have prompted legal action 

and resulted in jail time and fines, but there are legal and procedural barriers to prosecuting cases. 

For example, one reincarnated carrier case was recently declined 

for prosecution because a criminal penalty related to the Title 49 

violation being charged was only a misdemeanor provision which is 

less likely to result in jail time. The improper use of third parties 

to complete applications for DOT authority may also present complications to prosecution. 

To detect higher risk carriers before they reincarnate, FMCSA 

has tested new screening tools and it plans to roll out an enhanced 

process to vet applicants for Federal operating authority. Timely 

implementation of an enhanced vetting process will help FMCSA 

more efficiently identify and, where appropriate, remove carriers. 

Our criminal investigators also continue to identify carriers who 

commit fraud and violate FMCSA’s regulations in other areas. 

Through our partnership with FMCSA on the criminal side we 

have uncovered fraud committed by household good movers and in 

drug and alcohol testing programs, as well as shut down illicit commercial driving license schemes. 

We also have a lot of work underway to respond to congressional 

mandates including a review related to FMCSA’s 34-hour restart 

study. Congress suspended enforcement of the restart rule and required FMCSA to conduct the study of the rules, operational safety 

12 

1 Companies that operate commercial vehicles transporting passengers or hauling cargo in 

interstate commerce must have a USDOT number, which serves as a unique identifier for collecting and monitoring a company’s safety information. 

health and fatigue impacts. Our office is in charge of reviewing 

FMCSA’s plans and final results for the study to ensure the review 

complies with the act. 

Finally, Congress has directed us to assess FMCSA’s Mandatory 

Compliance Review process including determining whether 

FMCSA’s investigations are adequate to detect the violations. 

NTSB has raised similar concerns. This will be an important issue 

for us to address. 

This concludes my prepared statement. I’d be happy to answer 

any questions you or other members of the Subcommittee may 

have. 

[The prepared statement of Mr. Come ́ follows:] 

PREPARED STATEMENT OF JOSEPH W. COME ́, DEPUTY PRINCIPAL ASSISTANT

INSPECTOR GENERAL FOR AUDITING AND EVALUATION, U.S. DEPARTMENT OF

TRANSPORTATION

Chairman Fischer: 

Thank you for inviting me to testify on the Federal Motor Carrier Safety Administration’s (FMCSA) oversight programs and on issues impacting the Subcommittee’s 

work on the Agency’s reauthorization. As you know, FMCSA is responsible for ensuring a safe U.S. motor carrier industry, which comprises over half a million passenger and commercial carriers and more than 5.6 million commercial motor vehicle 

drivers. While fatalities involving large trucks and buses have decreased over the 

last 10 years, they remain high; in 2013, fatalities totaled nearly 4,300, and injuries 

nearly 83,000. 

To improve safety across the vast motor carrier industry, FMCSA launched its 

Compliance, Safety, Accountability (CSA) program in 2010, which aims to target 

FMCSA and State enforcement interventions—such as roadside inspections and onsite reviews—to motor carriers that pose a higher risk of violating safety rules. 

FMCSA has faced significant scrutiny from carriers and industry groups who have 

expressed concern that relative safety rankings generated by the CSA program, 

most of which are available to the public, do not accurately reflect safety risk. 

My testimony today focuses on (1) the status of FMCSA’s CSA program; (2) challenges with addressing reincarnated carriers; and (3) our efforts to complement 

FMCSA’s enforcement program, as well as our ongoing work on motor carrier safety. 

In Summary 

FMCSA has taken action to improve CSA data quality and system development, 

such as enhancing its efforts to monitor and correct State-reported data on crashes 

and inspections, and implementing a process for deactivating USDOT numbers 1 for 

carriers with outdated data. However, nationwide implementation of timely and effective enforcement interventions remains a challenge, largely due to delays in contractor development of software for assessing and monitoring interventions. Ensuring compliance with safety regulations also remains a challenge for FMCSA, although continued collaborative efforts with our office and law enforcement partners 

have proven effective at removing carriers and drivers intent on breaking the law, 

including reincarnated carriers. Key actions to keep reincarnated carriers off the 

road include effective vetting of carriers’ applications and prosecuting those companies that are caught violating the law. Collaboration has also been a major factor 

in successfully pursuing household goods carriers and brokers that hold consumer 

belongings hostage, commercial driver’s license fraud, and fraud in drug and alcohol 

programs. 

FMCSA Has Taken Action To Improve Its CSA Program, But 

Implementation of Enforcement Interventions is Incomplete 

FMCSA has taken several actions we recommended to improve CSA data quality 

and system development controls, which are fundamental to ensuring this safety initiative achieves its aim—to reduce truck and bus related injuries and fatalities by 

focusing enforcement efforts on carriers that pose a higher safety risk. However, nationwide implementation of enforcement interventions remains a challenge, largely 

13 

2 CSMS analyzes carrier data uploaded monthly from roadside inspections, crash reports from 

the last 2 years, and investigation results. It also uses self-reported census information about 

the carriers’ operations. 3OIG Report MH–2014–032, Actions Are Needed To Strengthen FMCSA’s Compliance, Safety, 

Accountability Program, Mar. 5, 2014. OIG reports are available on our website at: 

www.oig.dot.gov. The Government Accountability Office (GAO) reported separately on the effectiveness of CSA’s algorithm: GAO Report GAO–14–114, Modifying the Compliance, Safety, Accountability Program Would Improve the Ability to Identify High Risk Carriers, Feb 3, 2014. 4 Because CSMS is a Department of Transportation information technology system, industry 

best practices and Federal internal control standards are applicable to its development, testing, 

and validation. These best practices and standards include the Department’s Integrated Program Planning and Management Governance and Practitioners Guides and guidance from the 

National Institute for Standards and Technology and GAO. 5Sentri is the Safety Enforcement Tracking and Investigation System, and its primary users 

are FMCSA field officials and enforcement officials. The next version of Sentri is intended to 

combine roadside inspection, investigative, and enforcement functions into a single interface and 

replace all other legacy systems. 6 All states have implemented seven of the nine interventions except for off-site investigations 

and cooperative safety plans. 

due to delays in updating software for collecting documentation and monitoring 

interventions. 

FMCSA Has Taken Action To Improve Data Quality and System Development 

To identify high-risk carriers, FMCSA evaluates data with the Carrier Safety 

Measurement System (CSMS) 2 and calculates relative rankings for carriers’ on-road 

performance. Accurate rankings depend, in part, on complete, correct data. Because 

FMSCA uses certain census data (such as vehicle miles traveled and number of 

motor vehicles) to calculate carrier performance rankings, missing or outdated data 

can lead to incorrect computations and, ultimately, hamper safety monitoring and 

enforcement activities. 

In 2006, we reported that more than one-quarter of the over 700,000 existing 

motor carriers did not update census data every 2 years, as required. While FMCSA 

stated that it had taken over 2,000 enforcement actions since 2006, such as levying 

fines, against carriers that did not comply with its census data requirements, we 

reported in our March 2014 assessment 3 that about half of the roughly 803,000 active interstate carriers had not updated their census data between January 2011 

and February 2013. 

In response to recommendations we made last March, FMCSA has taken action 

to improve the data used by CSMS. Specifically, FMCSA enhanced its efforts to 

monitor and correct State-reported data on crashes and inspections. This included 

revised guidance on its data correction process, including treatment of dismissed 

violations. To respond to longstanding concerns about missing and inaccurate carrier-reported census data, FMCSA began to automatically deactivate USDOT numbers for carriers that do not update their census data every 2 years. By mid-April 

2014, 20,500 USDOT numbers were deactivated. 

Our March 2014 review also determined that FMCSA had limited documentation 

demonstrating that it followed information technology system development best 

practices 4 and Federal guidance—which emphasize thorough documentation of information technology system components and controls—while developing and testing 

CSMS. Specifically, FMCSA’s documentation of key processes—such as validation 

and testing—was incomplete. For example, FMCSA lacked documentation to show 

that it conducted testing for four of the changes made to the system since its nationwide implementation in 2010. Insufficient documentation impedes FMCSA’s ability 

to maintain effective control of the system in the event of staff turnover and further 

changes made to the system. In response to our recommendations, FMCSA developed complete system requirements and a configuration management plan for properly recording testing and validation results. 

Timely and Effective Implementation of CSA Enforcement Interventions Nationwide 

Remains a Challenge 

While FMCSA has made progress to improve data quality and improve system development, implementation of CSA enforcement interventions remains a concern, 

largely due to delays in developing updated Sentri software for collecting documentation and monitoring interventions.5 At the time of our report, only 10 states 

(which were part of FMCSA’s pilot or already had software) had fully implemented 

all interventions,6 and FMCSA does not expect to complete nationwide implementation until 2016. Without full implementation of all of CSA’s interventions, FMCSA 

14 

7 A suspect carrier is a carrier who is applying for new operating authority but whose owner’s 

name, address, or some other information matches with a carrier put out of service or facing 

other major violations. 

and its State partners cannot monitor and correct as many high-risk carriers as it 

otherwise could. 

Because of the incomplete implementation of enforcement interventions to date, 

we have not fully assessed the interventions’ effectiveness. However, based on our 

initial observations, FMCSA faces two key challenges to fully implement CSA interventions in the remaining 40 states and the District of Columbia: (1) developing and 

deploying software training for the states in a timely manner and (2) working with 

its Division Offices and their State partners to ensure states effectively apply the 

interventions. 

To fully implement CSA enforcement interventions, we recommended that 

FMCSA develop a comprehensive plan that includes an estimated completion date 

and milestones for releasing Sentri software, developing and delivering training, 

and using the enforcement interventions. While FMCSA currently expects to receive 

the software from the contractor by November 2015, its release has been postponed 

several times. More than 3 years have passed since the first estimated release date. 

Despite Progress, Challenges Remain with Addressing Reincarnated Motor 

Carriers 

A longstanding safety concern in the motor carrier industry is the practice of reincarnated carriers—carriers that attempt to operate as different entities in an effort to evade FMCSA’s enforcement actions. To circumvent out-of-service orders, 

these carriers often assume aliases or use different business addresses. Key actions 

to keep reincarnated carriers off the road include effective vetting of carriers’ applications and taking meaningful civil enforcement actions against carriers who continue to violate the law. The Office of Inspector General’s (OIG) criminal investigations bolster FMCSA’s enforcement efforts. 

We are seeing an increase in criminal cases of carriers blatantly disregarding 

safety laws and regulations, including attempts to reincarnate. In one particularly 

egregious case, a Georgia man continued to drive trucks for a company that had 

been issued an out-of-service order following a fatal crash that killed seven in Alabama. The man was sentenced to 6 months incarceration and 12 months supervised 

release for his participation in the conspiracy to violate the out-of-service order. In 

another case, the owner of a Tennessee trucking company continued commercial 

motor carrier operations under the name and authority of a second company after 

FMCSA issued an out-of-service order for unacceptable safety practices. Subsequently, FMCSA categorized the second company as a continuation of the first and 

placed it under an out-of-service order as well. The owners of the trucking companies pleaded guilty to out-of-service order violations. 

Prosecuting carriers that attempt to evade FMCSA’s out-of-service orders can be 

challenging. While a number of our investigations of alleged reincarnated carriers 

have prompted legal action, there are some legal and procedural barriers to prosecuting cases. For example, one reincarnated carrier case was recently declined for 

prosecution because the criminal penalties under Title 49 U.S.C. Section 521 contain only a misdemeanor provision, which is less likely to result in jail time. In the 

Tennessee case, a District Court Judge similarly ruled that violating an out-of-service order under Title 49 U.S.C. Section 521, was a civil—not a criminal—offense. 

Finally, we have started to see on the West Coast that third parties are completing 

applications for DOT authority and falsely representing that the applicant has no 

prior affiliation with another carrier. This practice not only violates FMCSA’s instructions for completing the Application for Motor Carrier Property Carrier and 

Broker Authority form but complicates the Department of Justice’s ability to prosecute bad actors. Criminal prosecution of these cases can send a strong message 

that blatant disregard of FMCSA enforcement actions or out-of-service orders will 

not be tolerated. 

Thoroughly vetting applicants for Federal operating authority is key to detecting 

high-risk carriers before they reincarnate. To help focus investigative resources on 

the highest risk passenger carriers, FMCSA established a screening tool initially 

used only for vetting new passenger carrier applicants. The tool identifies matches 

between applicants’ data and suspect carriers 7 and generates a score based on the 

matches. Theoretically, the higher the score, the greater the likelihood that an applicant and a suspect carrier are a match, warranting further review by FMCSA 

15 

8OIG Report MH–2012–087, Timely and Targeted FMCSA Action Is Needed To Fully Address 

National Transportation Safety Board Recommendations for Improving Passenger Carrier Oversight, Apr. 17, 2012. 9 49 Code of Federal Regulations § 386.73. 

staff. However, as we reported in April 2012,8 the tool produced unreliable scores 

and, in some cases, assigned low scores to carriers who were likely to be reincarnations. 

Upon discovering this flaw, FMCSA began manually reviewing all applicants with 

matches to pre-existing carriers. Since then, FMCSA has made progress in developing an effective, more automated screening tool. In June 2013, FMCSA tested a 

data-driven, risk-based prototype screening methodology—which it plans to phase in 

and fully implement this year for all new applicants—and centralized the vetting 

process within a new office, the Office of Registration and Safety Information. After 

testing, FMCSA identified some flaws with the methodology, but it plans to continue 

screening tool development and potentially incorporate it into its new electronic, online registration system, the Unified Registration System, by October 2015. 

FMCSA plans to roll out its enhanced vetting process to all motor carriers—commercial as well as passenger—but the process is not yet fully implemented. Given 

that passenger carriers make up a small portion of the companies regulated by 

FMCSA, expanding use of the tool to all motor carriers will pose a significant challenge. FMCSA has the authority to detect, deter, and implement vigorous enforcement actions against carriers that seek to reincarnate.9 To carry out this authority, 

FMCSA established procedures for issuing out-of-service orders to reincarnated 

motor carriers. The procedures provide for an administrative review of carriers with 

a history of failing to comply with statutory or regulatory requirements before an 

out-of-service order takes effect. The rule also establishes a process for consolidating 

FMCSA records of reincarnated companies with their predecessor entities. Carriers 

can no longer unilaterally terminate an enforcement proceeding by making full payment of the civil penalties levied without an admission of liability. Timely implementation of targeted and risk-based actions like these will help FMCSA more efficiently identify carriers that pose safety risks and keep them off the road. 

OIG Actions to Combat Fraud and Address Congressional Mandates 

Support FMCSA Efforts to Oversee the Motor Carrier Industry 

OIG remains dedicated to complementing FMCSA’s enforcement program through 

criminal investigations of egregious violators of FMCSA’s regulations. In addition, 

our audit efforts continue to identify opportunities to improve the effectiveness and 

efficiency of motor carrier safety programs. We have had success in the past and 

continue to partner with FMCSA to prevent household goods fraud, commercial 

driver’s license fraud, and fraud in drug and alcohol programs. We also have work 

under way to address congressional mandates concerning FMCSA’s hours-of-service 

restart study and high-risk carrier investigative practices. 

Combating Household Goods Fraud 

According to FMCSA, approximately 5,000 moving companies transport the household goods of 1.6 million Americans each year, and FMCSA receives about 3,000 

consumer complaints annually regarding household goods movers. Our investigations target complaints of egregious offenses, particularly those involving suspect 

household goods brokers and carriers that hold customers’ belongings hostage while 

attempting to extort significantly greater sums of money above the original quotes 

than are legally permissible. To carry out this extortion, brokers and carriers engage 

in other illegal activities that include conspiracy, wire fraud, mail fraud, money 

laundering, and falsification of bills of lading and shipment weight documents. 

While FMCSA is responsible for the civil enforcement of the consumer protection 

and economic regulations governing interstate household goods transportation, combating household goods fraud to protect consumers from rogue companies is an OIG 

investigative priority. In addition to actions FMCSA has taken to protect consumers—including requiring moving companies to provide customers with FMCSA’s 

booklet on consumer rights and responsibilities when they move—OIG investigations, and the resulting criminal prosecutions and sanctions, are strong deterrents 

to violators who consider civil penalties simply a cost of doing business. 

The vast majority of the allegations against rogue household goods companies we 

investigate have come from FMCSA and Operation Boxed Up, a proactive, cooperative initiative that OIG launched in March 2011 to target groups of carriers and brokers engaged in household goods fraud schemes. By analyzing databases from 

FMCSA’s household goods regulatory program, we identified consumer complaints 

on the most egregious actions by these carriers and brokers. In the past 5 years, 

16 

10The hours-of-service regulations are found in Part 395 of the Federal Motor Carrier Safety 

Regulations. States may have identical or similar regulations. 

we have opened 38 investigations, and have conducted 21 arrest warrants and 20 

search warrants. Our work has resulted in 20 indictments, 22 convictions, over 45 

years of jail time, and approximately $2.8 million in financial recoveries. The lion’s 

share of these results has come from our Operation Boxed Up initiative. 

In conjunction with Operation Boxed Up, we launched a Wanted Fugitives Web 

page in September 2012 to make the public aware of individuals with active arrest 

warrants who have fled the court’s jurisdiction. The site currently identifies 37 defendants charged with transportation-related crimes—all but 1 of which involves 

household goods fraud. In April 2014, the first fugitive was captured after more 

than 2 years on the run. Wanted on charges related to a large-scale household goods 

fraud scheme in Texas and under increasing pressure, the defendant turned himself 

in at the Federal Courthouse in Philadelphia, PA. He and his two accomplices used 

11 different company names to defraud dozens of customers. The three men were 

sentenced collectively to 30 years imprisonment and over $470,000 in restitution to 

their victims. 

Other Efforts To Combat Fraud and Help Ensure Motor Carrier Safety 

We continue to partner with FMCSA to combat commercial driver’s license and 

drug and alcohol testing fraud. 

CDL Fraud: States are responsible for developing a knowledge and skills test that 

confirms drivers understand and can follow Federal motor carrier safety laws. However, weaknesses in the CDL program continue to allow individuals and third-party 

testers to exploit the program, resulting in hundreds of fraudulently issued licenses. 

In 2011, FMCSA issued new regulations to tighten controls over CDL testing. Historically, however, FMCSA has had difficulty ensuring states swiftly and effectively 

implement new regulations. Since 2011, our office has opened 10 CDL fraud investigations in 6 states. In a recent case, the owner-operators of a driving school pleaded guilty to a test-taking scheme to provide answers to an estimated 500 New York 

State CDL applicants on the written exam. In a separate case, multiple individuals 

pleaded guilty, including New York Department of Motor Vehicle (DMV) employees, 

in a CDL test-taking conspiracy involving five DMV test centers in the New York 

City area. The investigation revealed that CDL applicants paid facilitators between 

$1,800 and $2,500 in return for CDL test answers and assistance through DMV 

processes. Fraud schemes included the use of pencils containing miniaturized encoded test answers and the use of a Bluetooth headset as a communication device 

to relay CDL test answers. 

Drug and Alcohol Testing Fraud: Since the early 1990s, FMCSA and its predecessor agency have established drug and alcohol testing rules and regulations for 

employees who drive commercial trucks and buses that require a CDL. These regulations identify who is subject to testing, when they are tested, and in what situations. Our agents’ investigations of parties who have fraudulently circumvented 

these regulations have resulted in recent convictions. In one case in Pennsylvania, 

the owner of a drug testing company pleaded guilty to defrauding several commercial motor carrier employers and drivers by using the signature of a medical review 

officer who had not worked for the drug testing company for many years to certify 

test results. In another case in California, the owner of a drug testing company was 

charged in a scheme to defraud 80 trucking companies that employed commercial 

drivers in conjunction with the provision of random and pre-employment drug testing services by allegedly falsifying specimen tests results required by and provided 

to FMCSA. 

Ongoing Efforts To Address Recent Congressional Mandates 

Congress recently directed us to assess FMCSA’s hours-of-service restart study 

and its high-risk carriers’ investigative practices. We have work under way to respond to these congressional mandates to improve motor carrier safety. 

Hours-of-Service Study: To keep fatigued drivers off public roadways, FMCSA requires drivers of large, heavy trucks to comply with its hours-of-service regulations, 

which limit when and how long drivers can operate.10 Effective in 2013, FMCSA required drivers to comply with a revised 34-hour restart rule to reset the weekly 

driving limit. The revised rule required a driver to be off duty for 34 consecutive 

hours, which must include two 1 a.m. to 5 a.m. periods. After the rule went into 

effect, concerns were raised about the rule’s unintended consequences, such as increased congestion during daytime traffic hours. In the Consolidated and Further 

Continuing Appropriations Act of 2015, Congress suspended FMCSA’s enforcement 

of the 34-hour restart rule and required the Agency to conduct a study of the rule’s 

17 

operational, safety, health, and fatigue impacts. The act mandated that we review 

FMCSA’s plan for conducting the study, as well as the study’s final results, to determine whether they comply with the requirements of the act. FMCSA has provided 

us its plan for the restart study, which we will brief out mid-March. We will issue 

our findings on FMCSA’s final report 60 days after its issuance, as required by the 

act. 

High-Risk Carriers: FMCSA conducts on-site reviews of motor carrier compliance 

with safety rules—such as those related to vehicle maintenance and inspection, commercial driver qualifications and licensing requirements, drivers’ hours of service, 

financial responsibility, hazardous materials transport, and other transportation 

safety rules—as well as reviews any accident records. These compliance reviews 

may be conducted in response to a request to change a carrier’s safety rating, to 

investigate potential violations of safety regulations by motor carriers, or to investigate complaints or other evidence of safety violations, and may result in enforcement actions. Concerned that unsafe carriers may be operating on our roadways due 

to untimely investigations, Congress directed us to assess FMCSA’s mandatory compliance review process to ensure motor carriers flagged for investigation are being 

investigated in a timely manner and to determine whether the type of investigations 

FMCSA conducts is adequate to detect violations. 

This concludes my prepared statement. I will be happy to answer any questions 

you or other members of the Subcommittee may have. 

The CHAIRMAN. Thank you, Mr. Come ́. Ms. FLEMING. 

STATEMENT OF SUSAN A. FLEMING, DIRECTOR, 

PHYSICAL INFRASTRUCTURE ISSUES, 

U.S. GOVERNMENT ACCOUNTABILITY OFFICE 

Ms. FLEMING. Madam Chairman, Ranking Member Booker, 

Ranking Member Nelson, and members of this Subcommittee, 

thank you for the opportunity to discuss FMCSA’s efforts to conduct oversight of commercial motor carriers and; more specifically, 

to reduce crashes which cause thousands of injuries and fatalities 

each year. 

With over 500,000 active motor carriers on our nation’s roads, 

FMCSA must strategically direct its resources to identify and target those carriers presenting the greatest risk for crashing in the 

future. Although our recent work shows that FMCSA has taken 

some important steps in this direction, my testimony reports on 

two aspects of its efforts that present serious challenges: the reliability of the key component of CSA, the Safety Measurement System, or SMS, in predicting crashes; and FMCSA’s ability to determine the prevalence of chameleon carriers, carriers that use a new 

identity to operate illegally on the road. 

Let me begin with the Safety Measurement System. Two shortcomings make SMS an unreliable predictor of crashes. First, most 

of the safety regulations used in SMS to identify high-risk carriers 

were violated too infrequently to provide a meaningful association 

at the carrier level. 

Second, FMCSA does not have sufficient safety data on most carriers to compare them with other carriers and reliably assess their 

likelihood of a crash. About two-thirds of carriers operate fewer 

than four vehicles and the vehicles of the carriers with small fleets 

were inspected too infrequently to produce reliable safety data. We 

believe this may be why the majority of carriers SMS identifies as 

having a high risk of crashing never actually crash. SMS does hold 

promise, however. FMCSA could improve its effectiveness by limiting its focus to carriers with more vehicles and more inspections. 

In other words, carriers with more safety information. 

18 

In our work, we illustrate that this approach better identifies 

carriers that crash. We realize this would involve a tradeoff. Fewer 

carriers would be scored with SMS but it would produce a more reliable indicator of potential crash risk. Based on these concerns, we 

recommended that FMCSA revise the SMS methodology to better 

account for limitations we identified and carrier safety performance 

information. 

FMCSA officials did not concur with our recommendations stating that SMS, in its current state, is sufficient to prioritize carriers 

for intervention. However, we believe that, without the modifications we recommend, FMCSA will fall short of its mission established by Congress nearly 15 years ago to ensure the safety of commercial motor vehicles, drivers, and the traveling public. 

Now, I would like to turn to chameleon carriers. FMCSA cannot 

readily determine the number of chameleon carriers on the road 

though they present a serious danger to the public. FMCSA has established a vetting program to identify possible chameleon carriers 

but only for bus operators and moving companies. FMCSA has chosen to vet these two types of carriers because they pose the highest 

safety and consumer protection concerns and there are not enough 

resources to apply the vetting program to the much larger freight 

carrier population. 

While FMCSA’s focus on these carriers limits the vetting program to a manageable number, our analysis found that, of the 

more than 1,100 new motor carrier applicants in 2010 that had 

chameleon attributes, the vast majority were freight carriers not 

bus and moving companies. To address chameleon carriers we recommended a data-driven approach to its screening process. 

In June 2013, FMCSA began implementing a risk-based methodology that closely follows the methodology in our report. Preliminary analysis indicate that it is generally successful. 

In conclusion, FMCSA plays an important role in identifying and 

removing unsafe commercial carriers from the roadways. We agree 

with FMCSA that a data-driven approach is critical for accomplishing this mission. However, we do not believe the agency has 

developed the most effective methods for using its data to target 

carriers presenting the greatest safety risk. 

Madam Chairman, this concludes my statement. I would be 

pleased to answer any questions you or members of this subcommittee might have. 

[The prepared statement of Ms. Fleming follows:] 

GAO Highlights 

Highlights of GAO–15–433T, a testimony before the Subcommittee on Surface 

Transportation and Merchant Marine Infrastructure, Safety and Security, Committee on Commerce, Science, and Transportation, U.S. Senate 

Why GAO Did This Study 

FMCSA’s primary mission of reducing crashes, injuries, and fatalities involving 

large trucks and buses is critical to the safety of our Nation’s highways. However, 

with more than 500,000 active motor carriers operating on U.S. roadways, FMCSA 

must screen, identify, and target its resources toward those carriers presenting the 

greatest risk for crashing in the future. 

FMCSA has recently taken some steps in this direction by, among other actions: 

• Establishing its oversight program—the CSA program—based on a data-driven 

approach for identifying motor carriers at risk of presenting a safety hazard or 

causing a crash, and 

19 

• Establishing a vetting program designed to detect potential ‘‘chameleon’’ carriers—those carriers that have deliberately disguised their identity to evade enforcement actions issued against them. 

This testimony provides information on both of these programs, based on two recent GAO reports on the oversight challenges FMCSA faces in identifying high risk 

motor carriers for intervention (GAO–14–114), and chameleon carriers (GAO–12– 

364), respectively. 

Motor Carrier Safety 

Improvements to Data-Driven Oversight Could Better Target High Risk Carriers 

What GAO Found 

The Federal Motor Carrier Safety Administration (FMCSA) has taken steps toward better oversight of motor carriers by establishing the Compliance, Safety, Accountability (CSA) and chameleon carrier vetting programs; however, FMCSA could 

improve its oversight to better target high risk carriers. The CSA program oversees 

carriers’ safety performance through roadside inspections and crash investigations, 

and issues violations when instances of noncompliance with safety regulations are 

found. CSA provides FMCSA, state safety authorities, and the industry with valuable information regarding carriers’ performance on the road. 

A key component of CSA—the Safety Measurement System (SMS)—uses carrier 

performance data collected from inspections and investigations to calculate safety 

scores for carriers and identify those at high risk of causing a crash. The program 

then uses these scores to target high risk carriers for enforcement actions, such as 

warning letters, additional investigations, or fines. However, GAO’s 2014 report 

identified two major challenges that limit the precision of the SMS scores and confidence that these scores are effectively comparing safety performance across carriers. 

First, SMS uses violations of safety-related regulations to calculate a score, but 

GAO found that most of these regulations were violated too infrequently to determine whether they were accurate predictors of crash risk. Second, most carriers 

lacked sufficient data from inspections and violations to ensure that a carrier’s SMS 

score could be reliably compared with scores for other carriers. GAO concluded that 

these challenges raise questions about whether FMCSA is able to identify and target the carriers at highest risk for crashing in the future. To address these challenges, GAO recommended, among other things, that FMCSA revise the SMS methodology to better account for limitations in available information when drawing comparisons of safety performance across carriers. FMCSA did not concur with GAO’s 

recommendation to revise the SMS methodology because it believed that SMS sufficiently prioritized carriers for intervention. Therefore, FMCSA has not taken any actions. 

GAO continues to believe that a data-driven, risk-based approach holds promise, 

and efforts to improve FMCSA’s oversight could allow it to more effectively target 

its resources toward the highest risk carriers, and better meet its mission of reducing the overall crashes, injuries, and fatalities involving motor carriers. 

GAO’s 2012 report found that FMCSA examined only passenger and household 

goods carriers as part of its chameleon carrier vetting program for new applicants. 

GAO found that by modifying FMCSA’s vetting program, FMCSA could expand its 

examinations of newly registered carriers to include all types of carriers, including 

freight carriers, using few additional staff resources. GAO recommended that 

FMCSA develop, implement, and evaluate the effectiveness of a data-driven, riskbased vetting methodology to target carriers with chameleon attributes. FMCSA 

concurred with GAO’s recommendation and has taken actions to address these recommendations. 

PREPARED STATEMENT OF SUSAN A. FLEMING, DIRECTOR, PHYSICAL INFRASTRUCTURE

ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE

Motor Carrier Safety 

Improvements to Data-Driven Oversight Could Better Target High Risk Carriers 

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

I am pleased to be here today to discuss oversight of the U.S. Department of 

Transportation’s (USDOT) Federal Motor Carrier Safety Administration (FMCSA). 

20 

1FMCSA was required under section 4138 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU) to ‘‘ensure that compliance reviews 

are completed on motor carriers that have demonstrated through performance data that they 

pose the highest safety risk.’’ Pub. L. No.109–59, § 4138, 119 Stat. 1144, 1745 (2005). 2Safety data obtained primarily from roadside inspections as well as from crash reports are 

sorted into six Behavior Analysis and Safety Improvement Categories (BASIC)—Unsafe Driving, 

Hours-of-Service Compliance, Driver Fitness, Controlled Substances and Alcohol, Vehicle Maintenance, and Hazardous Materials—associated with unsafe performance. In addition to the six 

BASICs, SMS also incorporates data based on a carrier’s crash involvement. 3See http://ai.fmcsa.dot.gov/sms/ 4GAO, Federal Motor Carrier Safety: Modifying the Compliance, Safety, Accountability Program Would Improve the Ability to Identify High Risk Carriers, GAO–14–114 (Washington, D.C.: 

Feb 3, 2014); GAO, Motor Carrier Safety: New Applicant Reviews Should Expand to Identify 

Freight Carriers Evading Detection, GAO–12–364 (Washington, D.C.: Mar 22, 2012). 

The commercial motor carrier industry is large and diverse, with more than 500,000 

active motor carriers operating on U.S. roadways. FMCSA’s primary mission of reducing crashes, injuries, and fatalities involving large trucks and buses is critical 

to the safety of our Nation’s highways. To accomplish this mission, FMCSA engages 

in a range of activities designed to screen, identify, and target its resources toward 

the motor carriers that demonstrate characteristics or behaviors that increase the 

risk of crashing. Among these activities are new entrant safety audits and identification, or vetting, of ‘‘chameleon’’ carriers—motor carriers that have registered and 

been operating illegally in interstate commerce by using a new identity in an effort 

to disguise their former identity and evade enforcement actions issued against them 

by FMCSA. 

FMCSA’s oversight program—the Compliance, Safety, Accountability (CSA) program—is based on the Safety Measurement System (SMS), a data-driven approach 

for identifying motor carriers at risk of presenting a safety hazard or causing a 

crash.1 SMS uses information collected during Federal and state roadside inspections and from reported crashes to calculate scores across seven categories that 

quantify a carrier’s safety performance relative to other carriers.2 The precision and 

accuracy of these scores is vital because FMCSA investigators and their state partners use SMS results to focus their resources on higher risk carriers and, through 

interventions, help reduce the number of motor carrier crashes, injuries, and fatalities. FMCSA currently posts most of the scores publicly on its website for use by 

industry stakeholders and the public.3 FMCSA has indicated that a future rulemaking will include some of the information used to calculate SMS scores to help 

determine a carrier’s overall fitness to operate motor vehicles. 

My statement today presents highlights from our two recent reports on the oversight challenges FMCSA faces in identifying high risk motor carriers.4 Each of these 

reports contains detailed information on our objectives, scope, and methodology for 

performing this work. The work on which this statement is based was performed 

in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate 

evidence to provide a reasonable basis for our findings and conclusions based on our 

audit objectives. We believe that the evidence obtained provides a reasonable basis 

for our findings and conclusions based on our audit objectives. 

In summary, our recent work on FMCSA oversight found that the establishment 

of the CSA program and chameleon carrier vetting program are steps toward better 

oversight of motor carriers. Through the CSA program, FMCSA can provide the 

agency, state safety authorities, and the industry with valuable information regarding carriers’ performance on the road and reach more carriers through interventions. However, while we continue to believe that a data-driven, risk-based approach 

holds promise, our work identified several major challenges that limit the precision 

of SMS scores and confidence that these scores are effectively comparing safety performance across carriers. These serious challenges raise questions about whether 

CSA is able to identify and target the carriers at highest risk for crashing in the 

future. In addition, our recent work on FMCSA’s chameleon carrier vetting program 

found that using data analysis for targeting new applicants would allow FMCSA to 

expand its examinations of newly registered carriers to include new applicants of 

all types rather than just passenger and household goods carriers, using few or no 

additional staff resources. FMCSA has taken actions to address our recommendations related to the vetting of chameleon carriers; however, it has not taken action 

to address our recommendations to better account for limitations in the CSA program. 

21 

5FMCSA uses inspection and crash data for a carrier over a 2-year period to calculate a SMS 

score. 6While SMS includes approximately 800 of FMCSA’s regulations, our analysis looked at the 

754 regulations available for the time frame of our analysis in order to limit violations to those 

that had sufficient violation data to examine over time. To conduct our analysis, a regulation 

needed to be present both during our analysis observation period, December 2007 to December 

2009, and our evaluation period, December 2009 to June 2011. 7 Rate estimates become more precise with each additional observation. Estimates based on 

10 to 20 observations are more precise than those based on 1 to 5 observations. However, the 

amount of data required in practice depends on the degree of imprecision the user is willing 

to accept for a given purpose. This trade-off, in turn, depends on how the user considers the 

consequences of inaccuracy. 8Our analysis included nearly 315,000 U.S.-based carriers that were under FMCSA’s jurisdiction and, with reasonable certainty, were active during the period from December 2007 through 

June 2011. We considered a carrier active during this period if it received a state or Federal 

inspection, was involved in a crash, or reported the number of vehicles it operates to FMCSA. 

Information on inspections, violations, and crashes from December 2007 through December 

2009, our observation period, was used to calculate SMS scores. We used crash information from 

the remaining 18 month period—from December 2009 through June 2011—referred to as our 

evaluation period, to determine these carriers’ subsequent crash rates and involvement in crashes. 

FMCSA’s Method Does Not Effectively Identify High Risk Carriers 

As we reported in our February 2014 report, since CSA was implemented nationwide in 2010, it has been successful in raising the profile of safety in the motor carrier industry and providing FMCSA with more tools to increase interventions with 

carriers. We found that following the implementation of CSA, FMCSA was potentially able to reach a larger number of carriers, primarily by sending them warning 

letters. Law enforcement officials and industry stakeholders we interviewed generally supported the structure of the CSA program, in part because CSA provides 

data about the safety record of individual carriers, such as data on inspections, violations, crashes, and investigations, that help guide the work of state inspectors during inspections. However, despite these advantages, our report also uncovered major 

challenges in reliably assessing safety risk and targeting the riskiest carriers. 

First, according to FMCSA, SMS was designed to use all safety-related violations 

of FMCSA regulations recorded during roadside inspections. For SMS to be effective 

in identifying carriers at risk of crashing, the violation information that is used to 

calculate SMS scores should have a relationship with crash risk. However, we found 

that the relationship between the violation of most of these regulations and crash 

risk is unclear, potentially limiting the effectiveness of SMS in identifying carriers 

that are likely to crash. Our analysis found that most of the safety regulations used 

in SMS were violated too infrequently over a 2-year period to reliably assess whether they were accurate predictors of an individual carrier’s likelihood to crash.5 Specifically, we found that 593 of the 754 regulations we examined were violated by 

less than one percent of carriers.6 Of the remaining regulations with sufficient violation data, we found 13 regulations for which violations consistently had some association with crash risk in at least half the tests we performed, and only two regulations had sufficient data to consistently establish a substantial and statistically reliable relationship with crash risk across all of our tests. 

Second, most carriers lack sufficient safety performance data, such as information 

from inspections, to ensure that FMCSA can reliably compare them with other carriers. SMS scores are based on violation rates that are calculated by dividing a carrier’s violations by either the number of inspections or vehicles associated with a 

carrier. The precision and reliability of these rates varies greatly depending on the 

number of inspections or vehicles a carrier has. Violation rates calculated for carriers with more inspections or vehicles will have more precision and confidence than 

those with only a few inspections or vehicles.7 This statistical reality is critical to 

SMS, because for the majority of the industry, the number of inspections or vehicles 

for an individual carrier is very low. About two-thirds of carriers we evaluated operated fewer than four vehicles and more than 93 percent operated fewer than 20 vehicles.8 Moreover, many of these carriers’ vehicles were inspected infrequently. Carriers with few inspections or vehicles will potentially have estimated violation rates 

that are artificially high or low and thus not sufficiently precise for comparison 

across carriers. This creates the likelihood that many SMS scores do not accurately 

or precisely assess safety for a specific carrier. FMCSA acknowledged that violation 

rates for carriers with few inspections or vehicles can be less precise, but the methods FMCSA uses to address this limitation are not effective. For example, FMCSA 

requires a minimum level of data (i.e., inspections or violations) for a carrier to reVerDate Nov 24 2008 14:09 Oct 23, 2015 Jkt 075679 PO 00000 Frm 00025 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\97249.TXT JACKIE
22 

9 CSA, CSMS Methodology, Version 3.0.1 Motor Carrier Preview, Revised August 2013. 

10FMCSA oversees two main groups of interstate motor carriers: (1) private carriers, who run 

an internal trucking operation to support a primary business in another industry, such as a retail store chain, and (2) for-hire carriers that sell their trucking services on the open market. 

Private and for-hire motor carriers seeking to operate in interstate commerce must register with 

FMCSA. For-hire carriers are also required to obtain operating authority from FMCSA, which 

dictates the type of operation the carrier may run and the cargo it may carry. 

ceive an SMS score. However, we found that level of data is not sufficient to ensure 

reliable results. 

Our analysis of the effectiveness of FMCSA’s existing CSA methodology found 

that the majority of the carriers that SMS identified as having the highest risk for 

crashing in the future did not actually crash. Moreover, smaller carriers and carriers with few inspections or vehicles tended to be disproportionately targeted for 

intervention. As a result, FMCSA may devote intervention resources to carriers that 

do not necessarily pose as great a safety risk as other carriers. In our 2014 report, 

we illustrated that when SMS only considered carriers with more safety information, such as inspections, it was better able to identify carriers that later crashed 

and allowed for better targeting of resources. An approach like this would involve 

trade-offs; fewer carriers would receive SMS scores, but these scores would generally 

be more reliable for targeting FMCSA’s intervention resources. FMCSA could still 

use the safety information available to oversee the remaining carriers the same way 

it currently oversees the approximately 72 percent of carriers that do not receive 

SMS scores using its existing approach. 

Given the limitations of safety performance information, we concluded that it is 

important that FMCSA consider how reliable and precise SMS scores need to be for 

the purposes for which they are used. FMCSA reports these scores publicly and is 

considering using a carrier’s performance information to determine its fitness to operate. FMCSA includes a disclaimer with the publicly released SMS scores, which 

states that the data are intended for agency and law enforcement purposes, and 

that readers should draw conclusions about a carrier’s safety condition based on the 

carrier’s official safety rating rather than its SMS score. At the same time, FMCSA 

has also stated that SMS provides stakeholders with valuable safety information, 

which can ‘‘empower motor carriers and other stakeholders. . .to make safety-based 

business decisions.’’ 9 As a result, some stakeholders we spoke to, such as industry 

and law enforcement groups, have said that there is a lot of confusion in the industry about what the SMS scores mean and that the public, unlike law enforcement, 

may not understand the limitations of the system. 

Based on the concerns listed above, in our 2014 report we recommended that 

FMCSA revise the SMS methodology to better account for limitations in available 

information when drawing comparisons of safety performance across carriers. We 

further recommended that FMCSA’s determination of a carrier’s fitness to operate 

should account for limitations we identified regarding safety performance information. FMCSA did not concur with our recommendation to revise the SMS methodology because, according to FMCSA officials, SMS in its current state sufficiently 

prioritizes carriers for intervention purposes. However, FMCSA agreed with our recommendation on the determination of a carrier’s fitness to operate, but has not yet 

taken any actions. As I will discuss later in my statement, we continue to believe 

that FMCSA should improve its SMS methodology. 

FMCSA Cannot Readily Determine the Number of Chameleon Carriers 

As we reported in our March 2012 report, FMCSA also faces significant challenges 

in determining the prevalence of chameleon carriers, in part, because there are approximately 75,000 new applicants each year. As mentioned earlier, chameleon carriers are motor carriers disguising their former identity to evade enforcement actions. FMCSA has established a vetting program to review each new application for 

operating authority submitted by passenger carriers (intercity and charter or tour 

bus operators) and household goods carriers (hired by consumers to move personal 

property). According to FMCSA officials, FMCSA vetted all applicants in these 

groups for two reasons: (1) these two groups pose higher safety and consumer protection concerns than other carrier groups and (2) it does not have the resources to 

vet all new carriers. While FMCSA’s exclusive focus on passenger and household 

goods carriers limits the vetting program to a manageable number, it does not account for the risk presented by chameleon carriers in the other groups, such as forhire freight carriers,10 that made up 98 percent of new applicants in 2010. 

We found that using data analysis to target new applicants would allow FMCSA 

to expand its examinations of newly registered carriers to include new applicants 

of all types using few or no additional staff resources. Our analysis of FMCSA data 

found that 1,136 new motor carrier applicants in 2010 had chameleon attributes, 

23 

11For the purposes of our analysis, we defined chameleon attributes as those that met two 

criteria: (1) They submitted registration information that matched information for a previously 

registered carrier; (2) The previously registered carrier had a motive for evading detection, such 

having as a history of safety violations or having filed for bankruptcy. 12DOD’s Transportation Protective Services program uses commercial motor carriers to transport hazardous and sensitive materials such as arms, ammunition, and explosives, and certain 

classified shipments. 13FMCSA conducts ongoing verification of State CDL program compliance and catalogs the 

results. 

of which 1,082 were freight carriers.11 Even with the large number of new applicant 

carriers and constraints on its resources, we concluded in 2012 that FMCSA could 

target the carriers that present the highest risk of becoming chameleon carriers by 

using a data-driven, risk-based approach. 

As a result of these findings, we recommended that FMCSA use a data-driven, 

risk-based approach to target carriers at high risk for becoming chameleon carriers. 

This would allow expansion of the vetting program to all carriers with chameleon 

attributes, including freight carriers. FMCSA agreed with our recommendations. In 

June 2013, to help better identify chameleon carriers, FMCSA developed and began 

testing a risk-based methodology that implemented a framework that closely follows 

the methodology we discussed in our report. FMCSA’s preliminary analysis of this 

methodology indicates that it is generally successful in providing a risk-based 

screening of new applicants, which it plans to use as a front-end screening methodology for all carrier types seeking operating authority. By developing this risk-based 

methodology and analyzing the initial results, FMCSA has developed an approach 

that may help keep unsafe carriers off the road. 

To further help Congress with its oversight of FMCSA and motor carrier safety, 

we also have on-going work on FMCSA’s hours-of-service regulations, DOD’s Transportation Protective Services program,12 and commercial driver’s licenses.13 This 

work is in various stages, and we expect to issue the final reports later this year. 

In conclusion, the commercial motor carrier industry is large and dynamic, and 

FMCSA plays an important role in identifying and removing unsafe carriers from 

the roadways. With over 500,000 active motor carriers, it is essential to examine 

ways to better target FMCSA’s resources to motor carriers presenting the greatest 

risk. To effectively do this, FMCSA must use a number of strategies to identify and 

intervene with high risk carriers. We continue to believe that a data-driven, riskbased approach for identifying high risk carriers holds promise. FMCSA’s preliminary steps to implement a risk-based screening methodology have the potential to 

identify more high risk chameleon carriers. However, without efforts to revise its 

SMS methodology, FMCSA will not be able to effectively target its intervention resources toward the highest risk carriers and will be challenged to meet its mission 

of reducing the overall crashes, injuries, and fatalities involving large trucks and 

buses. 

Chairwoman Fischer, Ranking Member Booker, and Members of the Subcommittee, this concludes my prepared remarks. I would be pleased to answer any 

questions you or other Members may have at this time. 

Senator FISCHER. Thank you, Ms. Fleming. 

Mr. Hart. 

STATEMENT OF HON. CHRISTOPHER A. HART, ACTING 

CHAIRMAN, NATIONAL TRANSPORTATION SAFETY BOARD 

Mr. HART. Thank you. 

Good morning, Chairman Fischer, Ranking Member Booker, and 

members of the Subcommittee. Thank you for the opportunity to 

appear before you today on behalf of the National Transportation 

Safety Board. 

Far too many highway crashes involve large trucks and buses. 

This poses a disproportionate hazard to occupants in passenger vehicle crashes that in 2012 alone killed nearly 4,000 people and injured more than 100,000. A recent upward trend in crashes involving large trucks prompted the NTSB to include strengthening commercial truck safety on its 2015 most wanted list of the most critical changes that are needed for transportation safety. 

24 

While there has been progress since the establishment of FMCSA 

in 1999, this death toll is completely unacceptable. The NTSB has 

issued 126 safety recommendations to the FMCSA and more than 

half of them remain open. Their implementation would enable the 

FMCSA to have a more immediate and lasting effect on reducing 

highway deaths. 

Today, I will focus on three areas: fatigue, oversight, and technology. The NTSB has long made recommendations on reducing 

driver fatigue, including hours of service, electronic logging devices, 

diagnosis and treatment of obstructive sleep apnea, education and 

training, effective countermeasures, and risk management programs. We are currently investigating a major crash that the 

Ranking Member referred to last year involving a large truck near 

Cranbury, New Jersey where fatigue may have been an issue. Fatigue is a contributing factor in far too many truck and bus crashes, and our research finds that it is the most frequently sited probable cause in crashes that are fatal to the driver. 

The NTSB has made recommendations to FMCSA’s predecessors 

and DOT to use science-based principles to revise hours of service 

regulations for commercial drivers; ensure that rule-enabled drivers to obtain 8 hours of continuous sleep, and illuminate provisions 

that allow splitting of sleep periods. In 2010, the FMCSA issued an 

NPRM to change the hours of service rule for truck drivers, but the 

NPRM unfortunately left passenger carrier rules unchanged. 

We support those provisions that are scientifically based to reduce continuous duty driving time, encourage breaks, promote 

nighttime sleep, and foster consistent schedules. We also support 

limiting use of the restart provision and require that the 34-hour 

restart interval include at least two consecutive off-duty periods 

during the nighttime circadian low point to increase opportunities 

for drivers to get adequate restorative sleep. 

The NTSB sees a disturbing trend of crashes involving fatigue 

drivers operating well in excess of hours of service limitations. We 

have long advocated using electronic logging devices for monitoring 

duty time. These enable tracking hours more effectively preventing 

violations and ensuring adequate time for restorative rest. The 

FMCSA must expeditiously issue the final electronic logging device 

rule to increase hours of service compliance for maximum safety. 

Regarding FMCSA oversight, many of the NTSB’s investigations 

have identified shortcomings in FMCSA truck and bus company 

oversight in which a deficient compliance review program has allowed unsafe businesses to continue operating. The two most important safety areas are driver performance and vehicle condition. 

And the FMCSA should emphasize both of these reviews. An unsatisfactory rating in either area should disqualify operators. 

In 2011, we recommended that the FMCSA include safety measurement rating scores in its compliance review methodology for determining a carrier’s fitness to operate. DOT has long plan changes 

to this process, and now, after long delays, predicts a rulemaking 

later this year. Any further delays will keep unsafe, high-risk carriers on our highways even longer endangering the motoring public. 

Finally, I would like to discuss promising new technologies. Technologies such as tested and proven life-saving systems for speed 

25 

limiting, forward collision warning, and electronic stability control, 

offer significant potential for reducing crashes. We urge the DOT 

Secretary to direct FMCSA and National Highway Traffic Safety 

Administration to expedite wider deployment of these technologies 

and to commercial motor vehicles. 

Crashes take far too many lives and forever change even more 

lives. Crashes also provide unique opportunities to identify safety 

issues. Unfortunately, too many of the problems outlined today 

have caused multiple crashes over a number of years and we keep 

seeing them over and over again. 

These must be addressed. Transportation safety is too important 

to continue repeating deadly mistakes and we must do better. 

Thank you for inviting me today to testify, and I am happy to 

answer any questions you may have. 

[The prepared statement of Mr. Hart follows:] 

PREPARED STATEMENT OF HON. CHRISTOPHER A. HART, ACTING CHAIRMAN, ON

BEHALF OF THE NATIONAL TRANSPORTATION SAFETY BOARD

Good morning, Chairman Fischer, Ranking Member Booker, and Members of the 

Subcommittee. Thank you for the opportunity to appear before you today on behalf 

of the National Transportation Safety Board (NTSB) regarding the reauthorization 

of the Federal Motor Carrier Safety Administration (FMCSA). 

The NTSB is an independent Federal agency charged by Congress with investigating every civil aviation accident in the United States and significant accidents 

and incidents in other modes of transportation—railroad, highway, marine, and 

pipeline. The NTSB determines the probable cause of accidents and other transportation events and issues safety recommendations aimed at preventing future accidents. In addition, the NTSB carries out special transportation safety studies and 

coordinates the resources of the Federal Government and other organizations to provide assistance to victims and their family members affected by major transportation disasters. Every day, there are thousands of accidents on our Nation’s highways resulting in tens of thousands of fatalities each year. Unfortunately, far too 

many of these highway crashes involve large trucks and buses, and the number of 

crashes involving large trucks has been increasing for the last several years. 

Last month, the NTSB released its Most Wanted List of Transportation Safety 

Improvements for 2015. Each year, we develop our Most Wanted List to highlight 

safety issues identified from our accident investigations. One of the Most Wanted 

areas included this year is to ‘‘Strengthen Commercial Trucking Safety.’’ We rely on 

commercial trucks to deliver food and goods to our local grocery stores, medical supplies to our pharmacies and hospitals, and packages to our loved ones. But because 

of their sheer size, weight, and physical properties, commercial trucks introduce a 

disproportionate hazard to passenger vehicle occupants in a crash. We must not lose 

sight of some very alarming statistics concerning the staggering number of deaths 

and injuries that occur each year in crashes involving large trucks and buses. In 

2012 alone, nearly 4,000 people were killed and more than 100,000 people were injured in such crashes. 

The primary mission of the FMCSA is to reduce crashes, fatalities, and injuries 

involving large trucks and buses. In the Motor Carrier Safety Improvement Act of 

1999, the legislation establishing the FMCSA, among the stated Congressional findings in support of creating the new agency was the following statement: ‘‘The current rate, number, and severity of crashes involving motor carriers in the United 

States are unacceptable.’’ While there has been considerable reduction in the number of fatalities since the establishment of the FMCSA, much more needs to be done; 

the death toll is still unacceptable. 

Since 1999, the NTSB has issued 126 safety recommendations to the FMCSA, 65 

of which are currently in an ‘‘open’’ status. Implementation of the ‘‘open’’ recommendations would strengthen the FMCSA’s capability to have an immediate and 

lasting effect on reducing loss of life on our highways. My testimony will provide 

a brief overview of some of our recent crash investigations and safety recommendations. I will also discuss the NTSB’s concern regarding the upward trend in crashes 

involving large trucks, the need for improved oversight and vehicle maintenance 

within the motor carrier industry, the importance of combatting driver fatigue and 

26 

1 Crash locations and dates: Elizabethtown, KY (03/02/13); Irving, TX (04/11/13); Mount 

Vernon, WA (05/23/13); Rosedale, MD (05/28/13); Murfreesboro, TN (06/13/13); Annapolis, MD 

(07/19/13); Naperville, IL (01/27/14); Centerville, LA (02/15/14); Orland, CA (04/10/14); Anaheim, 

CA (04/24/14); Cranbury, NJ (06/07/14); Red Lion, DE (09/21/14); Davis, OK (09/26/14); Knoxville, TN (12/21/14); Queenstown, MD (01/10/15); and Penwell, TX (01/14/15). 2Pocket Guide to Large Truck and Bus Statistics, October 2014 Update, Federal Motor Carrier 

Safety Administration, Office of Analysis, Research, and Technology. 3 H–99–6 

distraction, driver’s medical fitness for duty, and the life-saving benefits of collision 

avoidance technology. 

Recent Crashes and Accident Trends 

During the past two years, the NTSB launched investigative teams to 16 major 

highway crashes involving large trucks, motorcoaches, and school buses.1 These 

crashes resulted in 50 fatalities and more than 230 injuries. In 2014, the NTSB 

completed investigations involving a commercial truck with an oversized load that 

collided with the I–5 bridge over the Skagit River in Mount Vernon, Washington, 

resulting in a bridge span collapse and bridge replacement costs in excess of $4 million; and a truck–train collision in Rosedale, Maryland, resulting in the derailment 

of a freight train and a post-crash fire and explosion. 

Ongoing NTSB crash investigations that we will complete within the next year 

include the following: a truck-tractor trailer combination unit that crossed a median 

and collided with a motorcoach transporting high school students and adult chaperones in Orland, California, killing 10 people and injuring 37 others; a truck-tractor trailer combination unit that collided with a limousine van in a work zone in 

Cranbury, New Jersey, killing one person and injuring eight; a truck-tractor trailer 

combination unit that crossed a median and collided with a mid-size bus transporting a college softball team in Davis, Oklahoma, killing four and injuring 13; and 

a truck-tractor trailer combination unit that collided with emergency vehicles assisting a disabled vehicle in Naperville, Illinois, killing an Illinois State Tollway worker 

and seriously injuring an Illinois State trooper. 

In addition to investigating crashes, the NTSB closely monitors highway accident 

statistics and examines trends in data. The NTSB is very concerned about the increase in fatalities and injuries, and the rate at which large truck crashes are occurring. In 2009, there were 3,380 people killed in crashes involving large trucks; in 

2010—3,686 fatalities; in 2011—3,781 fatalities; and in 2012—3,921 fatalities. During this four-year period, not only did the death toll increase, but the rate of large 

truck crashes per vehicle miles traveled and per number of registered vehicles also 

increased.2

Motor Carrier Oversight 

The NTSB has a long history of making recommendations to the FMCSA and its 

predecessors to improve the safety of the motor carrier industry. Our investigations 

focus on identifying the underlying causes of accidents and the safety improvements 

necessary to prevent their recurrence. Many of our investigations have identified 

shortcomings in the FMCSA’s oversight of truck and bus companies. We have repeatedly found instances in which deficiencies in the FMCSA compliance review program allowed companies with serious safety problems to continue operations. 

The two most important areas related to safe motor carrier operations are the performance of drivers and the condition of vehicles. The NTSB believes that the 

FMCSA should emphasize both of these critical elements in its compliance reviews 

and disqualify an operator that receives an unsatisfactory rating in either vehicle 

or driver areas. The current compliance review process is inadequate and limits the 

FMCSA’s ability to remove unsafe carriers from our highways before they are involved in a catastrophic crash. 

The NTSB’s original recommendation regarding this issue was made in 1999 in 

response to a motorcoach rollover crash in Indianapolis, Indiana, that killed two 

passengers and injured 13. The motorcoach had only 50 percent braking efficiency 

and the FMCSA post-accident compliance review resulted each of the carrier’s 10 

vehicles being placed out of service. Because the company had been inspected nine 

times between 1987 and 1995, the issues with vehicle maintenance should have 

been obvious prior to the crash. In 1994, even though 63 percent of the operator’s 

vehicles met the out-of-service criteria, it received a ‘‘conditional’’ rating for vehicle 

factors. Because all the other factors were rated ‘‘satisfactory,’’ the operator was 

given an overall rating of ‘‘satisfactory’’ and continued to operate. As a result of our 

investigation of this crash, the NTSB recommended that the FMCSA emphasize 

both driver performance and vehicle condition in its compliance reviews, and that 

an unsatisfactory rating in either area should prohibit the carrier from operating.3

27 

4 H–12–17 

In the years following, the NTSB investigated additional motorcoach accidents 

that involved this same issue: a five-fatality motorcoach crash in Victor, New York, 

in 2002, and a 23-fatality motorcoach fire near Wilmer, Texas, in 2005. Because of 

the FMCSA’s lack of progress, the NTSB cited the agency in the probable cause of 

the Wilmer accident, stating: ‘‘Contributing to the accident was the Federal Motor 

Carrier Safety Administration’s ineffective compliance review system, which resulted in inadequate safety oversight of passenger motor carriers.’’ 

In 2007 and 2008, additional NTSB investigations continued to show that the 

FMCSA compliance review and oversight program was dysfunctional. In our investigations of a 17-fatality motorcoach crash in Atlanta, Georgia, in 2007, and a fatal 

motorcoach rollover crash in Victoria, Texas, in 2008, we continued to reiterate our 

previous recommendations for changes to the compliance review process. 

In 2008, the FMCSA launched an operational model test of the Compliance, Safety, Accountability (CSA) program (originally named the Comprehensive Safety Analysis 2010 initiative), which promised to be a complete revamp of the compliance review process. The measurement component of the CSA program is the risk-based 

Carrier Safety Measurement System (CSMS), which quantifies the on-road performance of motor carriers to prioritize enforcement resources. Since the implementation 

of the CSMS, the NTSB has found that the safety measurement scores will often 

accurately predict serious safety deficiencies in a company’s operation. Unfortunately, however, in many of the crashes we investigated, there was insufficient 

intervention prior to the accident to remove the unsafe carrier from operation. 

In 2011, following the NTSB’s investigation of a 15-fatality motorcoach crash in 

New York City, we recommended that the FMCSA include safety measurement rating scores in the methodology used to determine a carrier’s fitness to operate.4 The 

final report urged the FMCSA to move forward more expeditiously on finalizing the 

Safety Fitness Determination (SFD) process to help remove unsafe motor carriers 

and their drivers from the Nation’s highways. 

According to the February 2015 U.S. Department of Transportation (DOT) Significant Rulemakings Report, FMCSA planned to initiate its rulemaking to propose 

changes to the SFD process in 2007, but did not do so until September 2009. The 

agency’s plan to publish a notice of proposed rulemaking (NPRM) in March 2008 

is now predicted to occur in July of this year. The NTSB is very concerned about 

the continued delay in the release of the SFD rulemaking. Over 15 years has passed 

since we first called attention to problems with the FMCSA’s compliance review 

process and the oversight program remains dysfunctional. Prolonged deferral of 

rulemaking will continue to allow many unsafe, high-risk carriers to operate on our 

highways without intervention, posing a significant risk to the motoring public. 

FMCSA Effective Use of Resources 

The task facing the FMCSA is enormous and its resources are limited. With about 

1,000 dedicated and outstanding employees, the FMCSA regulates a diverse industry consisting of more than 539,000 interstate truck and bus companies, 10.5 million 

large trucks, 760,000 buses, and 5.6 million commercial drivers. In comparison, the 

Federal Aviation Administration has over seven times the number of employees who 

assist in regulating a much smaller industry of airline companies, aircraft, and pilots. It is vitally important that the FMCSA employ a collaborative, transparent, 

and data-driven approach to address the highest risk motor carriers, drivers, and 

vehicles. Due to its limited resources, the FMCSA is able to complete an annual 

compliance review for only about 3 percent of the 539,000 active interstate motor 

carriers. 

Given the unacceptably low compliance review rate of the motor carrier industry, 

it is of utmost importance that the FMCSA maximize the effectiveness of onsite reviews. The NTSB, however, has questioned the effectiveness of these reviews. In 

2013, for example, the NTSB investigated four commercial motor vehicle crashes, 

which together resulted in 25 deaths and 83 injuries. Data collected for each motor 

carrier presented ‘‘red flags’’ that should have led to strong intervention by the 

FMCSA; information such as longstanding and insufficient safety management practices, poor performance during roadside inspections, and law enforcement data indicating that the companies posed a significant risk and hazard to the motoring public. In each case, FMCSA safety investigators had visited the company prior to the 

crash and given it a clean bill of health, but immediately following the crash—after 

an NTSB investigation—the FMCSA found significant safety deficiencies and in 

three of the four cases, declared the company an imminent hazard, and placed it 

28 

5 H–13–39 and H–13–39 

6 H–03–02 

7 H–09–21 

8 H–09–34 

9 H–12–31 

out of service. As a result of these recent NTSB investigations, we made two recommendations to the DOT to conduct an internal audit of processes at the FMCSA.5

On February 3, 2014, in response to these recommendations, the DOT convened 

a task force to conduct an independent review of the compliance review process 

under the direction of the DOT Safety Council. NTSB staff met with task force 

members to provide additional views and information. It is our understanding that 

the review was completed in the summer of 2014 and today—9 months later—it has 

not yet been released, but is still with the Secretary of Transportation. The NTSB 

looks forward to seeing the study results and what changes are proposed to improve 

the effectiveness of the FMCSA compliance review process. 

Oversight of New Entrant and Reincarnated Motor Carriers 

In addition to ensuring adequate oversight of the motor carrier industry, the 

NTSB has long recommended that the FMCSA implement additional safeguards to 

ensure that new entrant carriers are safe before beginning operations. Although we 

commend the FMCSA for issuing a final rule in 2008 that strengthened requirements for new entrant carriers, additional processes need to be in place to keep carriers from going out of business and then restarting as a new motor carrier with 

a different company name and DOT number. 

In 2002, the NTSB investigated a crash involving a truck-tractor semitrailer collision with a Greyhound bus in Loraine, Texas, that resulted in three deaths. Our 

investigation revealed that when the trucking company owner submitted his application, he lied about his knowledge of regulations, his compliance management systems, and a drug conviction for possession of large amounts of marijuana. The 

owner also failed to maintain required records on his drivers or vehicles, have a 

drug and alcohol program, and conduct background checks of drivers. He also dispatched the accident driver knowing that he did not have a CDL or a medical certificate. At that time, the process of becoming a motor carrier was not complicated. 

The owner of a truck or bus company merely needed to fill out an online form and 

pay a small fee to receive operating authority from the FMCSA with practically no 

agency review or follow-up of new entrant motor carriers. As a result of that investigation, the NTSB recommended that the FMCSA require new motor carriers to 

demonstrate their safety fitness prior to obtaining new entrant operating authority.6

Unfortunately, NTSB investigations have discovered unscrupulous motor carriers 

using the new entrant program to evade enforcement action or an out-of-service 

order by going out of business and then reincarnating as a brand new company. The 

NTSB found this to be the case with the motorcoach operator involved in the 17- 

fatality Sherman, Texas, crash in 2008. After losing its authority to operate because 

of an unsatisfactory compliance review rating, the operator subsequently applied for 

new authority under a new name as a new entrant. The NTSB concluded that the 

FMCSA processes were inadequate to identify the operator as a company that was 

simply evading enforcement action. We recommended that the FMCSA evaluate the 

effectiveness of its New Applicant Screening Program.7

The NTSB found additional deficiencies with the FMCSA’s new entrant program 

during the investigation of a 2008 accident in which the driver fell asleep and the 

motorcoach overturned in Victoria, Texas, killing one person. The FMCSA failed to 

notice that the operator reincarnated as a new operator shortly after the crash. As 

a result, the NTSB issued recommendations requesting that the FMCSA develop 

methods to identify reincarnated carriers and seek authority to deny or revoke their 

operating authority.8 In September 2009, the FMCSA’s Motor Carrier Safety Advisory Committee echoed the NTSB’s position that new entrants should be evaluated 

before being allowed to operate. 

In 2011, the NTSB investigated a multiple-fatality motorcoach rollover crash near 

Doswell, Virginia. We found that the motorcoach operator did not undergo a safety 

audit until it had been in business for nearly two years. Although the carrier had 

no effective safety programs in place and had safety deficiencies in three important 

areas, it passed the new entrant audit and the FMCSA approved its application for 

operating authority. As a result of the Doswell investigation, the NTSB recommended that the FMCSA review with each new entrant motor carrier a structured process to identify the root cause of safety risks and maintain an effective 

safety assurance program.9

29 

10 H–14–27 11 H–05–4 and H–09–20 12 H–02–15, H–02–17, and H–02–18 13 H–06–02 14 H–05–03 15 National Highway Traffic Safety Administration (2011), Traffic Safety Facts: Drowsy Driving, DOT–HS–811–449, reports 1.3 percent of all crashes, 2 percent of injury crashes, and 2.4 

percent of fatal crashes involve a drowsy driver. 16 National Highway Traffic Safety Administration (2006), The Impact of Driver Inattention on 

Near-Crash/Crash Risk: An Analysis Using the 100-Car Naturalistic Driving Study Data, DOT– 

HS–810–594, estimated that 22–24 percent of crashes and near-crash events involved moderate 

to severe driver drowsiness. 

In 2012, the FMCSA and state commercial motor vehicle enforcement personnel 

completed more than 34,000 new entrant safety audits. Unfortunately, however, 

NTSB investigations continue to identify issues regarding the program’s effectiveness. In 2013, the NTSB investigated a highway–railroad grade crossing collision in 

Rosedale, Maryland, in which a single-unit truck crossed in front of a freight train, 

resulting in the train’s derailment, a post-crash fire, and an explosion involving hazardous materials. The trucking company had been in the new entrant program for 

an extended time after failing its initial safety audit and it submitted multiple corrective action plans. Nevertheless, neither the FMCSA nor state enforcement personnel followed up to ensure that it had adequate safety controls. As a result of this 

crash investigation, the NTSB recommended that the FMCSA require a full compliance review of new entrants that fail their initial safety audits.10

Vehicle Maintenance 

The NTSB has made numerous recommendations over the years on the safety of 

commercial motor vehicles and has found serious deficiencies in critical vehicle components such as brakes and tires. Unfortunately, experience has demonstrated that 

this is not an anomaly. Year after year, roadside inspectors have found that about 

20 percent of commercial motor vehicles are in a condition serious enough to render 

them out of service. 

The NTSB has taken issue with the FMCSA’s oversight of vehicle inspections including inspections of commercial motorcoaches. Following the eight-fatality 

Tallulah, Louisiana, and the 17-fatality Sherman, Texas, motorcoach crashes, the 

NTSB recommended that the FMCSA provide adequate oversight of private inspection garages.11

In crashes involving a school bus in Mountainburg, Arkansas, and a dump truck 

in Glen Rock, Pennsylvania, the NTSB found that the FMCSA lacked adequate 

oversight of pre-trip brake inspections, brake inspector qualifications, and formal 

brake inspector training.12 The Glen Rock crash prompted the NTSB to recommend 

that drivers be required to demonstrate proficiency in air-brake vehicles and to understand the dangers of adjusting automatic slack adjusters.13

The NTSB found out-of-adjustment and defective brakes to be contributing factors 

in three of its recent crash investigations: a six-fatality truck-tractor trailer combination unit collision with an Amtrak train in Miriam, Nevada; a truck–school bus 

crash in Chesterfield, New Jersey; and an eight-fatality motorcoach accident in San 

Bernardino, California. 

The NTSB has also found problems with commercial vehicle tires. A catastrophic 

failure can result when a speed-restricted tire is used above 55 mph for extended 

periods. Although this was not the cause of the motorcoach accident in Tallulah, 

Louisiana, the inspection process failed to identify the speed-restricted tires on this 

vehicle even though it operated on major highways. The NTSB made recommendations to correct this deficiency.14

Driver Fatigue 

The NTSB has a long history of making recommendations to reduce driver fatigue 

and the likelihood of related highway crashes including recommendations on hours 

of service (HOS), electronic logging devices (ELDs), diagnosis and treatment of obstructive sleep apnea (OSA), education and training, vehicle-and environment-based 

countermeasures, and risk management programs. 

Estimates of the prevalence of driver drowsiness in highway crashes vary widely—from 1 percent of all police-reported crashes to 24 percent of fatal crashes— 

based on different databases and research methods.15,16 Because of the absence of 

a diagnostic fatigue test, driver fatigue is believed to be a widely underreported 

cause of traffic crashes. The majority of police accident investigators do not code fatigue as being a contributing factor in a crash unless the driver reports falling 

asleep at the wheel or there is an independent witness. Unless the accident invesVerDate Nov 24 2008 14:09 Oct 23, 2015 Jkt 075679 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\97249.TXT JACKIE
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17 H–07–41 

tigation entity reviews the driver’s sleep and work history, and thoroughly evaluates 

the dynamics of the collision, a finding of driver fatigue as a contributing factor in 

an accident is highly unlikely. 

In October 2014, the NTSB convened a forum on drowsy driving in the noncommercial vehicle driving environment. The forum brought together experts on fatigue and sleep research from around the world. In discussing the prevalence of 

drowsy driving crashes, experts pointed to a 2012 AAA Foundation for Traffic Safety 

study that used the National Highway Traffic Safety Administration’s (NHTSA) National Automotive Sampling System (NASS) crashworthiness system data from 

1999–2008 comprising 47,597 crashes and over 80,000 vehicles. The study estimated 

that 17 percent of fatal crashes involved at least one drowsy driver. Among crashes 

where at least one occupant was hospitalized, 13 percent involved a drowsy driver, 

and in overall statistics, about 7 percent of crashes involved at least one drowsy 

driver. 

Based on these percentages, we can conservatively estimate that more than 5,000 

people are killed each year in crashes involving fatigue. 

Hours of Service Regulations 

The NTSB has found fatigue as a contributing factor in far too many truck and 

bus crashes. In the 1990s, we conducted two safety studies of commercial truck 

crashes and found that fatigue was the most frequently cited probable cause or factor in investigated crashes that were fatal to the driver. Based on these studies, the 

NTSB recommended that the FMCSA use science-based principles to revise the 

HOS regulations for commercial drivers, ensure that the rule would enable drivers 

to obtain at least eight hours of continuous sleep, and eliminate sleeper berth provisions that allow for the splitting of sleep periods. 

In December 2010, the FMCSA issued an NPRM to change the HOS rule for truck 

drivers but, unfortunately, left the rules for passenger carriers unchanged. The 

NTSB responded to the NPRM by supporting those provisions that are scientifically 

based and would reduce continuous duty or driving time, encourage break-taking, 

promote nighttime sleep, and foster scheduling patterns that are predictable and 

consistent with the normal human diurnal circadian rhythm. We also stated that 

limiting how often drivers may use the ‘‘restart’’ provision and requiring that the 

34-hour restart interval include two periods between midnight and 6:00 a.m. should 

have the effect of increasing the amount of sleep that drivers receive during the restart period and may encourage drivers that are more diurnally oriented. 

The NTSB acknowledges the challenges associated with establishing HOS regulations that promote safety and driver health while still providing drivers and operators with sufficient flexibility to make scheduling decisions and carry out operations 

in a competitive manner. Although many drivers do not have schedules that extend 

to the regulatory limits, some motor carriers have elected to incorporate the maximum on-duty period requirement into their supply chain planning, which results 

in scheduling drivers to the regulatory limits. 

The NTSB will continue to support and advocate for HOS regulations that are 

likely to reduce driver fatigue. Nevertheless, we acknowledge that HOS rules alone 

cannot solve the problem of fatigue-related crashes. As discussed below, the NTSB 

has also made recommendations calling for a mandate for ELDs, detection and 

treatment of obstructive sleep apnea, and effective fatigue management programs. 

Electronic Logging Devices 

Although HOS rules have been in place for years, the NTSB continues to see a 

disturbing trend of fatigued drivers operating commercial motor vehicles well in excess of HOS limitations and subsequently being involved in catastrophic crashes. 

For over 35 years, the NTSB has advocated the use of ELDs to allow better monitoring of hours of service and driver fatigue. In 2007, following the NTSB’s investigation of a truck-tractor trailer accident in Chelsea, Michigan, we recommended 

that the FMCSA require ELDs for HOS monitoring for all interstate commercial 

carriers.17

Properly designed, used, and maintained ELDs enable drivers, motor carriers, and 

authorized safety officials to track on-duty driving hours more effectively and accurately, thus preventing both inadvertent and deliberate HOS violations. Driver compliance with the HOS regulations helps ensure that they are provided time to obtain 

restorative rest and enable them to operate their commercial motor vehicles safely. 

It is vitally important that the FMCSA expeditiously issue a final ELD rule to increase compliance with HOS regulations and prevent future crashes, deaths, and injuries. 

31 

18 H–09–15 and H–09–16 19 H–08–13 20 H–10–9 21 H–14–26 

Obstructive Sleep Apnea 

OSA is a major and often undiagnosed sleep disorder. The NTSB has investigated 

several accidents in which OSA contributed to the fatigue of the driver, pilot, mariner, or train operator. In October 2009, we issued recommendations to the FMCSA 

addressing this safety problem to: (1) require drivers with a high risk for OSA to 

obtain medical certification that they have been appropriately evaluated and, if necessary, effectively treated for that disorder; and (2) provide guidance for commercial 

drivers, employers, and physicians about identifying and treating individuals at 

high risk of OSA.18

Fatigue Management Program 

Along with HOS regulations and tamperproof ELDs, fatigue management is the 

third leg of this critical safety stool. In 2008, following three fatigue-related bus 

crashes that occurred in Osseo, Wisconsin; Lake Butler, Florida; and Turrell, Arkansas—in which a total of 27 people died and 60 were injured—the NTSB requested 

the FMCSA develop a plan to deploy technologies in commercial vehicles to reduce 

fatigue-related accidents.19 The Miami,Oklahoma, crash, involving a fatigued truck 

driver prompted us to reiterate these recommendations and make an additional recommendation to require that all motor carriers adopt a fatigue management program.20

Cell Phone Distraction 

The NTSB issued its first recommendation about cell phone use by a commercial 

driver in 2006, following an accident in Alexandria, Virginia, in which an experienced motorcoach driver, who was having a conversation on his hands-free cell 

phone, failed to move to the center lane and struck the underside of an arched stone 

bridge on the George Washington Parkway. Our investigation found the driver had 

numerous cues to change lanes at the appropriate time for sufficient clearance. In 

fact, not only was the driver familiar with the road, but he was also following another bus that had already moved to the appropriate center lane. Despite all this, 

he still did not notice the well-marked signage or any other cues as he approached 

the bridge. The crash was clearly caused by the driver’s cognitive distraction due 

to his hands-free cell phone conversation. 

Following the investigation of a 10-fatality truck-tractor trailer combination unit 

crossover crash in Munfordville, Kentucky, in March 2010, which was caused by the 

truck driver’s distraction from cell phone use, the NTSB recommended that the 

FMCSA prohibit the use of both hand-held and hands-free cellular telephones by all 

CDL holders while operating a commercial vehicle. 

In December 2011, the FMCSA and the Pipeline and Hazardous Materials Safety 

Administration published a joint rule, at 49 CFR 392.82, specifically prohibiting 

interstate truck and bus drivers from using hand-held cell phones while operating 

their vehicles. The rule, however, did not prohibit hands-free use of phones. In response, the NTSB expressed concerns that the rule did not go far enough and failed 

to address the cognitive distraction aspect of hands-free cell phone usage. Research 

has shown that both the visual–manual distraction of manipulating portable electronic devices (PEDs) and the cognitive distraction of using hand-free PEDs significantly impair driver performance. Although using a hands-free device to operate a 

PED may mitigate, to some degree, the visual–motor distractions associated with 

certain subtasks, such as keying in a phone number, it does not mitigate the cognitive distraction associated with being involved in a conversation while driving. 

In the Rosedale, Maryland, crash discussed previously, a truck driver who was engaged in a hands-free cell phone conversation while approaching a highway–railroad 

grade crossing proceeded into the path of an approaching freight train. As noted 

above, the crash resulted in the derailment of the train, release of hazardous materials, and a post-crash fire and explosion. In this case, the NTSB again recommended that the FMCSA prohibit any use of a hands-free PED by a CDL holder 

while the driver is operating a commercial vehicle.21

Medical Fitness for Duty 

The NTSB has investigated many crashes involving commercial drivers with serious preexisting medical conditions that had not been detected or adequately evaluated. The most tragic example is the 1999 Mother’s Day crash in New Orleans, Louisiana, in which a motorcoach driver lost consciousness while driving on an interVerDate Nov 24 2008 14:09 Oct 23, 2015 Jkt 075679 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\97249.TXT JACKIE
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22 H–01–17 and H–01–19 23 H–01–18 24 H–01–21 25 H–01–24 and H–01–25 

state highway and crashed into an embankment, killing 22 passengers and injuring 

21. The driver had multiple previously known serious medical conditions, including 

kidney failure and congestive heart failure, and he was receiving intravenous therapy for three to four hours a day, six days a week. 

The FMCSA should be commended for implementing many of the Board’s recommendations in this area and has taken important steps to address medical issues, 

including publishing a final rule on merging the CDL with the medical certificate 

and creating a national registry of certified medical examiners. Nevertheless, much 

work still remains to be done. For example, the FMCSA needs to ensure that medical certification regulations are periodically updated and examiners are qualified 

and know what to look for.22 Additionally, although we commend the FMCSA for 

promulgating its National Registry for Certified Medical Examiners in 2012, we believe that the registry needs to include a tracking mechanism for driver medical examinations.23

The NTSB is hopeful that the registry will reduce the current practice of drivers 

‘‘doctor shopping’’ to find someone who will find them to be medically fit. Likewise, 

a second level of review is necessary to identify and correct the inappropriate 

issuance of medical certifications.24 The FMCSA must establish a system for reporting medical conditions that occur between examinations and develop a system that 

records all positive drug and alcohol test results and refusal determinations, requiring prospective employers and certifying authorities to query the system before 

making hiring decisions.25

Crash Avoidance Technologies 

Collision avoidance technologies offer lifesaving benefits by helping to reduce 

crashes involving commercial motor vehicles. The NTSB currently has more than 80 

open safety recommendations to NHTSA, many of which relate specifically to technologies that, if deployed on trucks and buses, would reduce and mitigate the severity of crashes. These technologies include forward collision warning systems, lane 

departure warning systems, electronic stability control systems, and speed-limiting 

technology. Many of these recommendations have not been acted upon by NHTSA. 

The NTSB encourages FMCSA collaboration with NHTSA to help expedite the development of performance standards and regulations requiring these important 

technologies. 

Closing 

The safety issues and crashes discussed today are a reminder that there is much 

to be done to improve the safety of commercial highway operations. Crashes provide 

a unique opportunity to identify real world issues, and the highway safety community should learn from its mistakes. Too many of the issues discussed today have 

been causal to multiple motor carrier and motorcoach crashes over a number of 

years, yet NTSB investigators see these factors again and again. Transportation 

safety is too important to the well-being of our citizens, our industry, and our economy to repeat past mistakes. We must do better. 

Thank you for inviting me to testify today. I am happy to answer your questions. 

Senator FISCHER. Thank you, Mr. Hart. 

We will begin with 5 minute rounds. 

Mr. Darling, your testimony mentioned that the FMCSA will implement changes to the CSA program in the coming months. Given 

that the GAO has provided recommendations on the CSA program 

over a year ago and we’ve heard from law enforcement that they 

have requested scores be removed from public view, why is the 

agency just taking action now and what reforms is the agency looking to make? 

Mr. DARLING. Thank you for you question, Chairman. 

I must start with saying that safety is our top priority. We believe that we need to maintain high safety standards on our highways every day. The information that is provided in the SMS data 

is good data. It is the data that we use to prioritize our intervenVerDate Nov 24 2008 14:09 Oct 23, 2015 Jkt 075679 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\97249.TXT JACKIE
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tions. It is data that is used by the public to make decisions every 

day. It is data that I’ve also heard from carriers that they use to 

improve their performance. 

SMS has only been in existence since 2010. We have continued 

to look to collaborate with industry, looked to collaborate with all 

stakeholders as we continue to improve the data that is provided 

in the SMS system. We have a continuous improvement team that 

is in place right now that is working with all stakeholders, and it 

takes time to make sure that we have a system that works. And 

we believe that we have a system that works today. 

Senator FISCHER. I can appreciate that government can move 

slowly but we’re all interested here in safety on our highways. For 

the citizens in this country, I would ask again: What reforms your 

agency is looking at with regards to the action being taken? 

Mr. DARLING. Again, I start with safety and I start with our continuous improvements. We are in the process of looking at different 

changes. We are not a place today to identify changes. We have 

some changes that we will be implementing by the end of the year, 

but we are working through a process right now and it is a collaborative process. 

Senator FISCHER. Do you have any specific changes you can tell 

us about at the hearing today? 

Mr. DARLING. I don’t, Chairman. 

Senator FISCHER. OK, thank you. 

Also, one of the challenges on this CSA program is that it doesn’t 

distinguish really between crashes that a trucking company may 

cause and also those that it doesn’t cause. I think that is an important fact that we be aware of. I am also aware that in your recent 

study on the limitations of using police accident reports that 

makes, I think, the fault determinations. In many cases, the fault 

is pretty obvious; I think. Like when a bridge in Cincinnati falls 

on a truck. Isn’t that pretty glaring that it wasn’t the trucker’s 

fault? 

I guess I would ask you: Is the agency really unable to determine 

that the truck didn’t cause the bridge to fall on it? 

Mr. DARLING. We are not in a position to make that determination, Chairman. We use various information to do that, particularly 

if difficult. That’s why we issued our crash waiting study and put 

that out for comment from industry and from other stakeholders to 

make sure that they have input on how we look at crashes. We 

don’t use crashes to weigh against a carrier unless we are going to 

change a carrier’s safety rating, and then we look to causation at 

that point. 

Senator FISCHER. But you are holding it against the carrier from 

the get-go after a crash; is that correct? 

Mr. DARLING. We don’t hold it against the carrier. 

Senator FISCHER. But if you attribute the crashes to the trucking 

company, isn’t that a black mark against them? 

Mr. DARLING. We only attribute a crash against a company unless we change the safety rating of that company. That is what, before we do that, that is when we look at causation. 

Senator FISCHER. And the causation changes the rating. Correct? 

Mr. DARLING. No, it doesn’t. We make a determination with a lot 

of factors before we change the rating. 

34 

Senator FISCHER. But that is one of the factors? 

Mr. DARLING. It could be one of the factors. 

Senator FISCHER. Are you looking at any reforms in determining 

the causation of accidents? 

Mr. DARLING. We have our crash rating, a report, that we are 

waiting for comment. Comment will close at the end of this month 

and then we’ll assess those and go to looking at how do we look 

at crash rating as a factor. 

Senator FISCHER. OK. Thank you, sir. 

Mr. DARLING. Yes. 

Senator FISCHER. Senator Booker. 

Senator BOOKER. The Ranking Member—— 

Senator FISCHER. Ranking Member. 

Senator BOOKER.—Senator Nelson, who also has a better haircut 

than me. 

STATEMENT OF HON. BILL NELSON, 

U.S. SENATOR FROM FLORIDA 

Senator NELSON. Senator Booker is the Ranking Member of this 

Subcommittee and he is very kind. And I will just enter an opening 

statement in the record, and just say that 4,000 deaths a year are 

occurring as a result of truck and bus accidents. And this is serious 

business. 

And then, just to top it off, Monday, a big semi plows into an 

SUV on the Buckman Bridge in Jacksonville and four people are 

dead. And so, it is just another reminder that we’ve got to take it 

very seriously. 

So I defer to the Ranking Member of this subcommittee, Senator 

Booker. 

Senator FISCHER. Thank you, Senator Nelson. I appreciate you, 

as Ranking Member, coming to the Committee hearing today, and 

your opening statement will be entered into the record. 

[The prepared statement of Senator Nelson follows:] 

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

I want to thank everyone for being here today to discuss a very important topic. 

As we all know, the trucking industry is vital to the Nation’s economy. In 2013, 

the trucking industry moved close to 9.7 billion tons of freight and collected over 

$600 billion in freight revenues. The trucking industry also employs a significant 

number of people across the country, including 3.2 million drivers. 

And, while the trucking industry is a safe industry, we need to do more to improve the trends to make it a safer one. 

Each year, approximately 4,000 people are killed on our Nation’s highways and 

roads in crashes involving a truck or bus, and nearly 100,000 others are injured. 

This is extremely concerning, and according to the Department of Transportation 

truck crash injuries increased nearly 40 percent from 2009 to 2012. 

Another troubling trend we are seeing is the use of appropriations riders to stop 

important safety rules. 

In 2013, the Department implemented rules to help keep tried truckers from getting behind the wheel. 

No sooner were they implemented, then last year’s appropriations bill included a 

rider that stopped enforcement of some the most important pieces of the rule. 

Eliminating part of the rule—a rule that simply requires truck drivers to stop for 

some rest once in a while—is a direct threat to public safety and could endanger 

motorists on America’s highways. 

There is no reason this kind of provision should be included in a spending bill. 

These discussions should happen in regular order in this Committee, which has jurisdiction. 

35 

At the end of the day what we all want are safer roads. But we need to have an 

open discussion about how we get there. If we work together on these rules and 

other issues confronting the trucking industry, I believe we can get to a safer outcome. 

Senator FISCHER. Senator Booker. 

Senator BOOKER. Thank you. 

And I appreciate the Ranking Member of the entire Committee 

deferring to the Ranking Member of this Subcommittee and it is 

only due, as he has whispered in my ear, that New Jersey should 

go before Florida on most occasions, but you have seniority in this 

case. So I appreciate your graciousness. 

I do want to dive in, if I can, to something that there has been 

a lot of talk about over the last months, which are hours of service. 

And I really want to get to these. 

So can I start with Administrator Darling, and just ask you just 

quite bluntly: Right now, is it true that drivers can potentially be 

able to drive more than 80 hours a week? 

Mr. DARLING. The answer is yes. 

Senator BOOKER. And, do you see that as a threat to the safety 

of our roads and highways? 

Mr. DARLING. I do see that as a threat to the safety of our roads 

today. 

I want to thank you, Ranking Member Booker, for your support 

of the 2011 Hours of Service Rule. The U.S. DOT and FMCSA 

stand behind that rule. We promulgated that rule to save lives and 

protect people that we love every day who use our highways. 

Senator BOOKER. If I may, because I—— 

Mr. DARLING. OK. 

Senator BOOKER.—I’ve got limited time. 

Mr. DARLING. Yes. 

Senator BOOKER. Earlier, we heard testimony from a trucking 

company who said most drivers never come close to hitting the 

maximum weekly hours. Is that true in your estimation, that most 

truckers out there don’t come close to that 80 hours? 

Mr. DARLING. There is probably a majority that do not come close 

to that 80 hours, but there is a potential to work 80 hours with the 

current rule. 

Senator BOOKER. And so, let’s be more specific and drill down. 

The appropriations rider that I tried to stop, how does that impact 

driver fatigue, that rider which suspended some of these rules? 

Mr. DARLING. The impact of the current rule is that, with our research on the 2011 rule, we found that drivers that have one hour 

of rest are more fatigued than drivers who have two hours of rest. 

The rule that we had in 2011 was a data-driven rule that was 

backed up by research and studies. 

Senator BOOKER. So data-driven research studies. Be more specific. Did you just, sort of, read an article in The New York Times 

and come to that conclusion or what is data-driven in this? Can 

you—— 

Mr. DARLING. No. Data-driven is that we had studies that were 

conducted by—— 

Senator BOOKER. How many studies? 

Mr. DARLING. There is probably close to 500 studies that we used 

in that rule, or looked at in that rule. 

36 

Senator BOOKER. Right, and so this wasn’t your opinion—— 

Mr. DARLING. It is not my opinion, no. It is the opinion of the—— 

Senator BOOKER. In God we trust. I’m a man of faith, but everybody else bring me data. 

Mr. DARLING. Yes. 

Senator BOOKER. And you are saying you have 500 studies—— 

Mr. DARLING. There was—— 

Senator BOOKER.—that supported the rule. 

Mr. DARLING. Yes. There were 500 studies that were reviewed as 

part of that study. 

Senator BOOKER. OK. 

So when it comes to accidents, how big of a role in general, could 

you assess for me, does driver fatigue cause, as we’ve seen this 

spike, this surge in accidents, how much does driver fatigue—is it 

other issues that are playing a role or is driver fatigue a cause or 

main cause, not your opinion, but according to a lot of the studies 

and data? 

Mr. DARLING. Yes. We put out a truck causation study that 

looked at fatigue. And about 13 percent of the serious crashes were 

caused by fatigue. But, remember, fatigue is hard on fatal crashes 

because, you know, it is hard to tell if somebody has had rest or 

not so—— 

Senator BOOKER. With 13—fatalities—— 

Mr. DARLING. Yes. 

Senator BOOKER.—crashes involving fatalities, but remember, we 

have tens of thousands of others—— 

Mr. DARLING. Yes. 

Senator BOOKER.—do they play a role in a significant percentage 

of those—— 

Mr. DARLING. Yes. The answer to the question is, we believe, yes. 

Senator BOOKER. Can I return to the Honorable Mr. Hart in the 

last minute that I have remaining? How do you respond to the 

hours of service provisions in the appropriations bill? 

Mr. HART. We encouraged, again, science-based rules that enable 

humans to be human, which means sleeping at night. That’s why 

we were very strong about having two periods of restorative sleep 

within the 34-hour restart based on, again, based on data. 

Senator BOOKER. And, again, why is it important that you have 

that restart? Because, there are two concerns here: one is just 

working that 80 hours a week or more which seems to, by the data 

shown, that you begin to strain human endurance but then, number two, that restart rule is also a bit of a controversy. Could you 

just, in my last 20 seconds here, could you explain why that restart 

rule is important in accordance with the data and the research of 

hundreds and hundreds of studies? 

Mr. HART. Based on our review of the data, two opportunities to 

have restorative sleep results in much less fatigue than only one 

opportunity for restorative sleep. That’s why it was important for 

us to have two opportunities for restorative sleep within the restart 

period. 

Senator BOOKER. Thank you very much. 

Thank you, Chairman. 

Senator FISCHER. Thank you, Senator Booker. 

Senator Cantwell. 

37 

STATEMENT OF HON. MARIA CANTWELL, 

U.S. SENATOR FROM WASHINGTON 

Senator CANTWELL. Thank you, Madam Chairman, and thank 

you for holding this important hearing. 

Chairman Hart, I have a couple of questions for you if I could. 

One, you may well remember the tragic accident we had on the 

Skagit River Bridge on part of I–5 which collapsed? 

Mr. HART. Yes, I do remember. 

Senator CANTWELL. In 2013, very shocking for people all across 

America to think that a bridge that transports about $38 million 

of trade between U.S. and Canada would collapse. 

So part of the NTSB’s deficiencies and safeguard, one of the recommendations was to ban non-emergencies by the pilot escort vehicle. And so, one of the things that was determined is that the actual hit occurred but the communication back was not communicated in a timely fashion. So you’re recommending that that pilot 

vehicle, only if they are communicating with the car for, you know, 

extra-wide loads—— 

Mr. HART. Oversize, yes. 

Senator CANTWELL.—oversize loads, that that is the only communication that should be going on between the pilot and that vehicle? 

Mr. HART. Emergency communications, in general. And so, in 

that case, the escort car—actually there was an impact of the pole 

with the bridge, but the escort driver was on the phone at the time 

and, you know, that fact of the pole hitting the bridge was not communicated to the following truck. 

Senator CANTWELL. And now, Washington State DOT has a $17 

million lawsuit against the truck driver, the company, the pilot car, 

the pilot car company, the owner of the truck, all of that because 

somebody was talking on the phone. 

Anyway, I want to follow up on that recommendation. And also, 

because you’re here and you had a blog, I understand, about—we 

had a hearing, I think that was yesterday, on this issue of railcar 

safety. And that part of your 2015 most wanted list of improvements, particularly in light of what happened in Virginia, do you 

believe that we need, that actually these cars that are out there to 

replace the 111s aren’t really that great and that we need a thicker 

hull? 

Mr. HART. We have several accidents, recently, involving the 

newer cars, the 1232 cars, including one in Canada, and we are reviewing them closely to determine whether the additional 

robustness is actually producing a positive result in the real world. 

Senator CANTWELL. But you have doubts about that? 

Mr. HART. Well, we are seeing enough concerns. Like in Lynchburg, the train was going less than 25 miles an hour and still 

breached a 1232 car. And so, we have concerns and we’re collecting 

evidence based on the accidents about all those cars. 

Senator CANTWELL. So you think a thicker shell, thicker hull? 

Mr. HART. Well, it’s a multiple approach including the thickness 

of the shell. We don’t specify the specific thickness, we just say the 

robustness needs to be improved. But also thermal protection so 

that a car won’t be engaged in that—fire from another car won’t 

38 

cause, you know, the other cars to explode, and it’s a multifaceted 

issue. 

Senator CANTWELL. Besides the 1232 thickness? 

Mr. HART. Yes. There’s the head in protection; there’s the thickness; there’s the thermal protection. It’s a multifaceted issue. 

Senator CANTWELL. But we need more thickness than 1232s? 

Mr. HART. Well, that’s what we’re trying to find out. We have 

only a few, you know, we have a very small end so far and we’re 

trying to determine whether the thickness was the problem. 

Senator CANTWELL. OK. I believe that we need more thickness. 

So, anyway, OK. 

Thank you, Madam Chair. 

Senator FISCHER. Thank you, Senator Cantwell. 

Because the panel’s here and willing, I assume we’ll do another 

round of questions. And I will begin. 

Ms. Fleming, FMCSA plans to issue a proposed rule to assign 

safety fitness ratings to motor carriers based on data and scores 

from its CSA scoring system, and I know that GAO issued a 2014 

report on CSA which highlighted a number of problems and deficiencies. Since safety ratings determine whether carriers can operate in interstate commerce, do you believe that the CSA produces 

sufficiently reliable scores on which to based safety, fitness ratings? 

Ms. FLEMING. We have not seen the rulemaking, but a lot of it 

depends on the information that is going to be used for making 

those determinations. If SMS scores are apart of that, our work 

shows that they don’t do an accurate job of reflecting a carrier’s 

crash risk. So it really goes back to the purpose. 

It’s sufficient for FMCSA and law enforcement to target interventions, but we have problems when it is being displayed publicly 

when the information does not, it’s not reliable enough to compare 

safety performance across carriers. So I think that’s the main 

thrust of our concern. 

Senator FISCHER. And can you provide this Subcommittee with 

information regarding that audit of the 2014 Hours of Service Field 

Study, and what are some of the highlights of your work on that? 

Ms. FLEMING. Unfortunately, that is ongoing work that is for you 

and for the colleagues over on Transportation Infrastructure. We’d 

be happy to brief you but, in a nutshell, we do have an ongoing 

study looking at hours of service; two aspects of it. We are looking 

at the strength and limitations of the completed field study, the efficacy of the rule, particularly looking at the two nighttime provisions, and then we’re also looking at some of the potential impacts 

of the rule; on safety, health, and the economy. And we do plan to 

report out this summer on that. 

Senator FISCHER. But you would be willing to brief us prior—— 

Ms. FLEMING. Absolutely. 

Senator FISCHER.—to reporting that? Thank you. 

Ms. FLEMING. Absolutely. 

Senator FISCHER. And, Mr. Come ́, ensuring the drivers properly 

attain their CDLs, I think that’s a major effort in promoting safety. 

Can you tell us about the update on any successes or challenges 

that you’re seeing with CDL fraud investigations? 

Mr. COME ́. Thank you. 

39 

We have not conducted any audit work, but we do continue to 

work to combat CDL fraud. I know, recently, we had a case where 

there were owners of a driver’s school in New York where there 

was a test station scheme to provide answers to an estimated 500 

applicants. And in that case, we were able to obtain a conviction. 

It continues to be a problem that relates to sometimes as in this 

case, the actual people giving the test. Sometimes it is third-party 

testers who are involved with bringing people to the test themselves and we’ve seen gadgets such as Bluetooth and pencils with 

coding in them used to try to get around these tests. 

Senator FISCHER. Can Congress do anything to help you with 

that? 

Mr. COME ́. I don’t know of any specific, you know, legislative 

issues we’re concerned with on the CDL side. It just continues to 

be, you know, an active part of our investigations. 

Senator FISCHER. Thank you. 

Senator Booker. 

Senator BOOKER. I’m going to try to do a speed round here to get 

all my questions in. 

So just real quick, in some great conversations I’ve had with the 

trucking industry looking for areas of compromise, they’re insistent 

that most drivers don’t go over 80 hours. 

Mr. Darling, wouldn’t it just be easier then if that’s the case? 

Let’s make a hard rule, nobody drives over 80 hours. Is that an 

easy way of looking for solutions to deal with this? 

Mr. DARLING. I don’t believe that’s an easy way to deal with this. 

I think the rule that we had in place, Senator Booker, in 2011 dealt 

with allowing truckers to have adequate time to work but also to 

have adequate time and opportunity for rest. I think that we need 

to continue moving forward with the safety rule that we had in 

place in 2011. 

Senator BOOKER. OK. So you think the restart rule is important? 

Mr. DARLING. I think the restart rule is very important. 

Senator BOOKER. OK. 

And, sir, are there other things that we should be considering as 

solutions to deal with driver fatigue besides limiting hours and restart rule? Are there some other things about driver fatigue that 

we should be considering? 

Mr. DARLING. I believe the study that we’re going to do, that 

we’re currently engaged in will help us understand some more of 

those opportunities to allow drivers to have additional rest. 

Senator BOOKER. Thanks, Mr. Darling. I’m going to cut you off 

just because—— 

Mr. DARLING. Thank you. 

Senator BOOKER. Mr. Hart, anything else we should be considering; and I do think that the current five hundredth and whatever 

study we’re doing right now, as Ms. Fleming talked about, but are 

there other things as quick ideas you might want to give the Committee about ways to deal with driver fatigue? 

Mr. HART. Thank you for the question. 

Electronic logging is very important just so we would have with 

certainty as an indication of the hours that were driven. But we 

also know that what the driver does off-duty, we have no control 

over that. That’s why fatigue management programs are so imporVerDate Nov 24 2008 14:09 Oct 23, 2015 Jkt 075679 PO 00000 Frm 00043 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\97249.TXT JACKIE
40 

tant. So that, because we know self-diagnosis of fatigue is not reliable. 

Fatigue management includes education of the people to help 

them diagnose their own fatigue. Also, obstructive sleep apnea 

evaluations are very important because we’re seeing increasing incidents of that as well. So it’s a multitude of issues that we’re looking at. 

Senator BOOKER. That’s great. Senator Fischer and I are thinking about mandating watching C-SPAN because we think that’ll 

put drivers to sleep. 

[Laughter.] 

Senator BOOKER. Real quickly. As the truck accident that was 

just mentioned by my Ranking Member, these big accidents can 

cost over $20 million to compensate family care for the injured, the 

destruction that happens on highways of these explosions often, but 

the thing that is surprising to me to have found out is that the requirement is to carry $750,000 in minimum insurance. That has 

not been increased in 30 years even though the cost of these, to all 

of us, is so dramatically high. It doesn’t even account for inflation. 

And so taxpayers are fitting this bill. It’s an externality, a really 

negative externality, that’s put onto the public. 

I’m wondering, Administrator Darling, FMCSA issued a report 

recognizing the current minimum insurance level is inadequate. 

What steps can Congress take in a surface transportation reauthorization to reduce the unfair economic burden that truck crashes 

place on the American people? 

Mr. DARLING. Right now, we have an advance notice of the proposed rulemaking out which is data gathering. I think once we 

gather that data, we’ll have more information remembering that 

the minimum insurance requirements are 30 years old and we 

want to make sure that we look at it. So I’d like to wait until we 

have an opportunity to review that advanced notice of proposed 

rulemaking before we take any more action. 

Senator BOOKER. All right. And that will bring me to my last line 

of questioning for now which is the speed at which we’re doing 

things. And I know that you’re just the acting member, but in the 

last transportation reauthorization, Congress required that the 

final rule mandating something called the Electric Logging Devices—— 

Mr. DARLING. Yes. 

Senator BOOKER.—be on trucks, be issued by October 2013. It 

was nearly a year and a half ago, I was still just a happy mayor, 

had not come down here yet. Just tell me, why is this important 

safety rule so far behind? We’re talking about urgent things that 

could make a life or death difference. And is this kind of thing 

being put into a high priority? 

Mr. DARLING. Thank you for that question and that’s a good 

question. The Electronic Logging Device rule is a high priority because it is a safety rule as Chairman Hart talked about. It will 

help with understanding hours of service. We have made it a priority in my agency and we will get that rule, final rule, out and 

published by the end of this Fiscal Year. 

Senator BOOKER. OK. And I just want to say as I conclude and 

I know that I can imagine that the chairman agrees with me, there 

41 

are a lot of just things languishing and overdue in FMCSA; rules 

that have been required by congressional statutes, something that 

I want to take a look at in trying to get the agency to keep up with 

the urgency and the mandates of Congress. It’s just very important. 

Mr. HART. Yes. 

Senator BOOKER. All right. 

Mr. HART. Yes. 

Senator BOOKER. Thank you. Thank you so very much. 

Senator FISCHER. Thank you, Senator Booker. 

He’s from New Jersey. He can get a lot of questions in because 

he speaks quickly. Being from Nebraska, we’re a little slower but 

I expect great things from Minnesota. 

So Senator Klobuchar. 

STATEMENT OF HON. AMY KLOBUCHAR, 

U.S. SENATOR FROM MINNESOTA 

Senator KLOBUCHAR. Very good. Yes, we’ll go to the Midwestern 

piece now. 

It’s so good to see all of you. Thank you for your good work. 

Ms. Fleming, the GAO’s 2014 report regarding the Compliance 

Safety and Accountability program pointed to a number of changes 

that need to happen in order to make the program more effective 

and reliable. The report states ‘‘for Safety Measurements System to 

be effective in identifying carriers more likely to crash, the violations that the FMCSA uses to calculate SMS scores should have a 

strong predictive relationship with crashes. However, based on 

GAO’s analysis of available information, most regulations used to 

calculate the scores are not violated often enough to strongly associate them with crash risk for individual carriers.’’ 

What specific changes would you recommend be made to improve 

the correlation between the scores and the crash risk? 

Ms. FLEMING. I think that gets to the heart of our report which 

is that you need additional safety information. You know, we found 

two problems with the SMS scores. One, they don’t accurately capture the carrier’s risk and that’s because there isn’t a lot of safety 

information for the majority of carriers. And then, the problem is 

that we were not able to make a statistical link between the violations and predict whether a carrier is likely to crash in the future. 

And so, what we were able to do, and I thank you for that question because it gets me to some of the concerns that FMCSA has 

with our work, is we were able to try to produce more reliable 

scores. Our approach basically said, instead of just the three to five 

inspections, we’re going to try to use more safety information; we’re 

going to use additional inspections on vehicles. And our work found 

that, by just doing that, we were able to identify two-thirds of highrisk carriers that crash in the future compared to the methodology 

that FMCSA is currently using which only identified one-third. 

Senator KLOBUCHAR. That’s a big change. 

Ms. FLEMING. It’s a big change. And yes, it involves tradeoffs. It 

involves maybe scoring less carriers but, and I think that’s the 

point that my colleague makes, which is that we would only score 

10 percent. But I think it’s important to note that the current approach only scores 20 percent of all carriers. So by just doing some 

additional, by collecting some more additional information, you’re 

42 

able to target FMCSA’s limited resources to those carriers that 

truly pose the highest risk of crashing. 

Senator KLOBUCHAR. OK. Thank you very much—— 

Ms. FLEMING. You’re welcome. 

Senator KLOBUCHAR.—for that thorough answer. 

Mr. Darling, the sharp decline in traffic enforcement triggered 

truck inspections and the Motor Carrier Safety Assistance program 

has resulted in far fewer evaluations being reported. My concern is 

that fewer traffic enforcement inspections means fewer traffic enforcement violations are going into the unsafe driving basic in the 

CSA. And would allocating more enforcement resources lead to improved truck safety? Do you think that would make a difference? 

Mr. DARLING. Thank you, Senator, for that question. 

We are working hard to have more traffic enforcement. That’s 

one of the tools we have in the toolbox to deal with safety and to 

manage risk. We’ve been working hard to include more truck enforcement. We believe that’s one way of getting to, as you mentioned, getting to unsafe driving. 

We have, in our GROW AMERICA proposal, provisions in the 

state grant programs that allow grant recipients to use that money 

for traffic enforcement. We are conducting training, currently, on 

traffic enforcement, and we also have a grant with the International Chiefs of Police to help us think about that issue. But traffic enforcement is one of the tools that we have that we believe is 

an important tool. The other tool being inspections and being interventions. 

Senator KLOBUCHAR. OK. Well, I’m almost out of time here but 

I have a few questions I’ll just put on the record. 

Mr. DARLING. Thank you. 

Senator KLOBUCHAR. So thank you very much. 

Mr. DARLING. Thank you. 

Senator FISCHER. Thank you, Senator Klobuchar. 

Senator Daines. 

STATEMENT OF HON. STEVE DAINES, 

U.S. SENATOR FROM MONTANA 

Senator DAINES. Thank you, Madam Chair. 

For Administrator Darling, a question. When I was a member of 

the House, I authored and passed an amendment to the Transportation Approps bill. It was going to block the efforts to increase financial responsibility requirements for motor carriers. These increased requirements would be up to a 500 percent increase and 

would send premiums skyrocketing despite the DOT’s own data 

that showed that the current requirements covering 99.9 percent of 

the accident cost, and we were doing some research on the Fed 

Register. 

And this policy, going back in history, was established by the 

Federal Highway Administration in 1980 where, and I quote, it 

said, ‘‘Congress’ intent for reasonable protection did not include 

those damages incurred as a result of an extremely limited number 

of ‘worst case’ accidents.’’ 

So a question: Given that the current policy covers 99.9 percent 

of accident costs, why is the agency departing from this original 

policy? 

43 

Mr. DARLING. We’re not departing, Senator, from the original intent. We have put out an advance notice of rulemaking that looks 

to collect data about the financial responsibility from the stakeholders. That is currently out and we’re currently analyzing the 

comments that we’re going to receive from that. I go back to the 

point that the minimum financial responsibility requirements were 

put in place in 1980. It’s now 2015 and it may be an opportunity 

for us to take a look at it. 

Senator DAINES. Well, there was a discussion about where this 

proposed rule may create up to a 500 percent increase for our carriers when, again, 99.9 percent of the current accident cost recovered under the existing policy. My concern is, what I see here is, 

the primary beneficiary of these increased liability and requirements here for our motor carriers is going to be the trial lawyers. 

That’s who is going to benefit the most. 

Mr. DARLING. Senator, thank you again, we have not made any 

decisions on financial responsibility. Again, I go back to we’re in a 

data collection period. We’d like to collect the data. We need to analyze the comments that we’ve received from the advanced notice of 

proposed rulemaking. It is not a proposed notice of rulemaking it’s 

the advanced; means that we’re collecting data to determine where 

we go next and how we proceed next. 

Senator DAINES. OK, let me move on a separate area. 

Yesterday, we had Secretary Foxx. Had a good hearing with him 

and we were—around why there were so many Acting Administrators in major operating agencies in the Department of Transportation. And he said they’re looking for the right fit and they had 

good leaders in place. And you’ve been the Acting Administrator 

since August 2014. It’s my understanding that your term as Acting 

Administrator ends in just 19 days, March 23. What’s the contingency plan after March 23? 

Mr. DARLING. I currently serve at the will of the President, and 

I have 19 days left. It’s my understanding that the Administration 

is vetting some candidates for the position. We will look to have 

adequate administrative support going forward after my term is 

over. So we will have somebody in place to run the agency. 

Senator DAINES. Has the President given you any indication he 

wanted you to nominate, be nominated for that position or someone 

else? Do you have any sense? There’s 19 days left to—— 

Mr. DARLING. Right. 

Senator DAINES.—hopefully, you get some visibility there. 

Mr. DARLING. Yes, there is some visibility there and I believe the 

Administration is looking at candidates. I only serve at the will of 

the President and the Administration. 

Senator DAINES. Thank you. 

I yield back my time. 

Senator FISCHER. Thank you, Senator Daines. 

With that, the hearing record will remain open for two weeks. 

During that time, Senators are asked to submit any questions for 

the record. Upon receipt, the witnesses are requested to submit 

their written answers to the Committee as soon as possible. 

I thank the witnesses for appearing today. Thank you so much. 

The hearing is closed. 

[Whereupon, at 12:11 p.m., the hearing was adjourned.] 

(45) 

A P P E N D I X 

RESPONSE TO WRITTEN QUESTION SUBMITTED BY HON. DEB FISCHER TO

SUSAN A. FLEMING

Question. As you pointed out in your written testimony, FMCSA stated that its 

CSA Safety Measurement System (SMS) provides stakeholders with valuable safety 

information, which can ‘‘empower motor carriers and other stakeholders . . . to 

make safety-based business decisions.’’ At the hearing you said you had concerns 

about the public display of data based on the limitations GAO has identified in the 

reliability and precision of CSA’s Safety Management System scores. Is it appropriate for FMCSA to suggest that stakeholders make safety-based business decisions 

by relying on publicly available SMS scores, considering GAOs concerns about the 

reliability and precision of the CSA methodology? 

Answer. Given the limitations that we identified with SMS scores in our recent 

work (GAO–14–114)—that SMS scores are not precise enough to measure a carrier’s 

relative safety performance—we believe that the SMS scores should be removed 

from FMCSA’s CSA website. 

Publicly displaying scores that are unreliable could be worse than not displaying 

any scores at all since shippers and brokers, U.S. Government departments, and the 

public use the publicly available scores to make decisions, such as which carrier to 

hire to transport goods. If those scores do not accurately reflect the safety performance of a company, they could cause companies to lose business or cause consumers 

to hire an unsafe carrier that was not deemed high risk. 

FMCSA already shields some SMS scores from public view. For example, FMCSA 

does not display SMS scores for carriers that do not have enough safety performance 

data, such as a minimum number of inspections. We found that the minimum number of inspections established by FMCSA was too low to calculate a reliable SMS 

score for comparing carriers’ safety performance. In addition, through a disclaimer, 

FMCSA acknowledges that a carrier’s publicly released SMS scores should not be 

used to draw conclusions about a carrier’s safety condition, which has created confusion in the industry about what the scores mean. 

FMCSA needs to determine the level of precision needed for the intended purpose, 

including publicly displaying SMS scores. However, data used to calculate SMS 

scores could continue to be publicly reported to help inform the public about individual carriers’ history of inspections, violations, and crashes. 

RESPONSE TO WRITTEN QUESTION SUBMITTED BY HON. KELLY AYOTTE TO

SUSAN A. FLEMING

Question. In your written testimony, you explained that GAO has on-going work 

regarding FMCSA’s Hours of Service regulations. Could you please provide me with 

an update regarding GAO’s on-going work on this issue? 

Answer. Our audit on FMCSA’s Hours of Service regulations is being conducted 

at the request of the House Committee on Transportation and Infrastructure, and 

Senator Fischer, as Chairman of the Senate Surface Transportation and Merchant 

Marine Infrastructure, Safety and Security Subcommittee. We expect to issue our 

report on that work toward the end of July 2015. We would be happy to brief Senator Ayotte and her staff after the report is published. 

RESPONSE TO WRITTEN QUESTION SUBMITTED BY HON. CORY BOOKER TO

SUSAN A. FLEMING

Question. The NTSB has raised concerns that in many of their crash investigations, there was insufficient intervention from FMCSA to stop the unsafe company 

from operating before the accident occurred. Do you share this concern? Would your 

recommendations address this concern? 

46 

Answer. We share the concerns raised by the NTSB. Our 2014 report (GAO–14– 

114) raises serious questions about the ability of CSA to identify carriers at the 

highest risk for crashing. FMCSA uses SMS scores to identify and prioritize carriers 

with safety performance problems for intervention. However, our analysis showed 

that FMCSA’s method for prioritizing carriers is not identifying carriers that crash 

in the future as well as possible alternatives could. As a result, FMCSA may devote 

significant intervention resources to carriers that do not actually pose as great a 

safety risk as other carriers. Specifically, we tested an illustrative alternative to 

FMCSA’s existing methodology and demonstrated that by focusing on carriers with 

more safety performance information, a much higher percentage of the carriers identified as high risk eventually crashed (67 percent), than those identified using 

FMCSA’s existing method (39 percent). If FMCSA implemented our recommendation, it could improve its ability to identify high risk carriers that are likely to crash 

and prioritize its use of limited intervention resources. 

Once a high risk carrier is identified by FMCSA, the carrier is subject to interventions ranging from a warning letter to a full compliance review. Many of these 

FMCSA interventions are new since the implementation of CSA in 2010. While 

these intervention strategies could help FMCSA reach more carriers, the effectiveness of these new strategies remains unclear. While we have not studied the effectiveness of these intervention strategies in detail to date, we believe future work is 

warranted given the importance of this issue. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. RICHARD BLUMENTHAL TO

HON. T.F. SCOTT DARLING III 

Question 1. Minimum levels of insurance as set by the Federal Motor Carrier 

Safety Administration (FMCSA) are required to protect the traveling public from 

burdensome accident costs. The current minimum is $750,000 for most carriers of 

property (with certain higher limits for those carrying hazardous materials and passengers). This amount was last changed in 1985—30 years ago. 

In April 2014, FMCSA issued a report—as mandated by Congress—evaluating the 

current financial responsibility limits for motor carriers—especially those carrying 

property. The FMCSA report determined that the current minimum of $750,000 

falls well short of what is necessary, concluding that (1) costs for severe and critical 

injury crashes can easily exceed $1 million; and (2) current insurance limits do not 

adequately cover catastrophic crashes, mainly because of increased medical costs. 

The report concluded overall: ‘‘current financial responsibility minimums are inadequate to fully cover the costs of some crashes in light of increased medical costs 

and revised value of statistical life estimates.’’ In other words, when carriers cause 

accidents, they’re often ill-prepared to pick up the tab. 

In November 2014, FMCSA announced an Advance Notice of Proposed Rulemaking on insurance minimums. The comment period recently closed. 

What is the timeline for finalizing this rule? Does FMCSA envision a new minimum that would adequately cover the real cost of accidents? How much is the public currently overpaying for severe truck accidents? 

Answer. Section 32104 of MAP–21 directed the Secretary of Transportation (DOT) 

to issue a report to Congress on the appropriateness of the current minimum financial responsibility requirements for motor carriers of property and passengers, and 

the current bond and insurance requirements for freight forwarders and brokers. 

The statute also requires that the Secretary report on the adequacy of the financial 

responsibility requirements every 4 years thereafter. FMCSA’s April 2014 report fulfilled the statutory requirement for the initial report. And given the findings that 

certain crashes occur for which the current levels appear inadequate, the Agency 

tasked it Motor Carrier Safety Advisory Committee to provide recommendations on 

how best to address this challenge. The Agency also sought public comment through 

publication of an Advance Notice of Proposed Rulemaking (ANPRM), a rulemaking 

notice in which a series of questions were presented without any proposal for 

changes to the minimum levels of insurance. The Agency is currently reviewing the 

public comments submitted in response to the ANPRM and no decision has been 

made concerning the next regulatory action. 

A previous FMCSA-sponsored study on this issue identified the issue of cost 

transference as it relates to severe truck crashes but did not provide an estimate 

of the aggregate amount of final judgments against motor carriers that exceeded the 

limits of the insurance coverage for those carriers. 

Question 2. In January of this year, the Department of Transportation announced 

plans to allow Mexican motor carriers to apply for certification to begin cross-border 

long-haul services throughout the United Sates. This announcement came after a 

47 

three-year pilot project that produced evidence the Department of Transportation 

contends is proof that Mexican trucking operations can meet U.S. standards. 

I’m concerned the pilot project was insufficient. Likewise, many labor leaders, 

safety advocates and industry officials question the pilot project and have voiced 

grave concerns over the long-term proposal, arguing that the pilot project wasn’t extensive enough and any results are inconclusive at best. 

What gives you confidence that Mexican truck operators will meet U.S. safety 

standards? Have you reviewed the concerns of many labor leaders, safety advocates 

and others that the pilot project should go on for a longer time period than three 

years and include more than just 13 carriers, which seem like an extremely insufficient sample size? What actions are you taking to address their concerns? 

Answer. FMCSA is confident that Mexican motor carriers can meet U.S. safety 

standards because the extensive analysis conducted during the pilot program of both 

pilot program participants and other Mexico-domiciled/Mexican-owned companies 

operating in long-haul transportation. As explained in FMCSA’s April 2011 Federal 

Register notice, the Agency’s analysis plan included the assessment of the safety 

performance of both the Pilot Program carriers and a large number of Mexicanowned or -domiciled Enterprise and Certificate motor carriers conducting long-haul 

operations beyond the commercial zones of the United States during the Pilot Program. The analysis of the Certificate and Enterprise carriers was conducted, in 

keeping with the Agency’s analysis plan, to provide complementary safety information as they operate in substantially the same way as the Pilot Program carriers 

under a different oversight regimen. During the Pilot Program period, 351 new Enterprise motor carriers received authority. 

Evaluating driver out-of-service (OOS) rates, vehicle OOS rates, brake violations, 

hour of service (HOS) violations, driver fitness violations, and moving violations, 

along with safety ratings and acute and critical violations—the primary criteria 

used to measure the safety of motor carriers operating in the United States—the 

analysis found that Mexico-domiciled motor carriers operating beyond the commercial zones had safety records that were equal to or better than the national average 

for U.S. and Canadian motor carriers operating in the United States. 

Based on the data available to FMCSA and the analysis in the Report to Congress, in conjunction with data developed for comparison purposes on other Mexican 

motor carriers with long-haul operations, FMCSA concluded that the Pilot Program 

successfully demonstrated that Mexican motor carriers can and do operate throughout the United States at a safety level equivalent to U.S. and Canada-domiciled 

motor carriers. 

The Agency addressed the concerns of all interested parties in developing the pilot 

program. As a result, the participating carriers operated safely and in compliance 

with Federal regulations. However, FMCSA’s pilot program regulations at 49 CFR 

381.400 do not allow pilot programs to go beyond 3 years so that was not an option 

for the program. 

FMCSA is confident that the application and oversight procedures in place will 

continue to ensure the safety of these motor carriers. Applicants for long-haul operating authority still undergo Agency safety and security vetting. In addition, the applicant must pass a Pre-Authorization Safety Audit (PASA) before being issued operating authority. During the PASA, FMCSA confirms that the motor carrier has 

systems in place for managing hours-of-service and agreements in place for drug 

and alcohol testing. In addition, the FMCSA auditor reviews driver qualification 

files and confirms that all of the minimum requirements of the PASA are met. 

The operating authority applications are noticed in the FMCSA Register like 

those of U.S. and Canadian motor carriers. Before authority is granted, applicants 

must file evidence of financial responsibility and process agents, like other motor 

carriers. 

Once a Mexican motor carrier has long-haul authority it must also: 

• Mark all of its vehicles with an ‘‘X’’ at the end of the DOT number to show it 

is a long-haul motor carrier. 

• Undergo an in-depth Level 1 safety inspection every 90 days for its 18 month 

provisional authority, and the first 3 years of standard authority (4.5 years 

total). 

• Display a current Commercial Vehicle Safety Alliance (CVSA) decal issued by 

a certified inspector to prove the vehicle has passed an inspection. Mexican carriers with long-haul authority must display a decal at all times for at least 

three years after receiving operating authority. Any commercial vehicles that 

are not in compliance will not be allowed to operate until their safety has been 

verified through another inspection. 

48 

• Undergo regular inspections by Customs and Border Protection, as well as 

FMCSA border inspectors, at U.S. ports of entry. 

• Comply with all Federal Motor Carrier Safety Regulations 

• Maintain evidence of financial responsibility. 

• Undergo a compliance review in the first 18 months that confirms that the required safety management systems are in place. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. CORY BOOKER TO

HON. T.F. SCOTT DARLING III 

Question 1. As you know, there has been a considerable amount of discussion in 

recent months about the Department’s hours-of-service rule and the appropriations 

bill that stopped enforcement of two provisions. Administrator Darling, is it true 

that drivers will potentially be able to work more than 80 hours per week? 

Answer. Yes. With the Congressional suspension of certain provisions of the ‘‘restart rule,’’ it is possible for a commercial driver to work an average of more than 

80 hours per week. 

Question 2. How do the changes in the appropriations bill impact driver fatigue? 

What have your studies found about drivers that don’t get two consecutive nights 

of work off? 

Answer. Congressional action is contrary to what the fatigue research and 

FMCSA’s expert panel on fatigue has suggested is needed for drivers to recover from 

a long work week. Driver fatigue is exacerbated by irregular and/or night shifts, 

which reduce sleep length and quality. The research conducted by Jovanis and 

Kaneko (1990), Linklater (1980), and Williamson et al., (1994) all support the idea 

that fatigue develops over the week and that recovery time is required. FMCSA 

commissioned a panel of fatigue experts to provide recommendations to improve the 

HOS rule to reduce driver fatigue. The expert panel recommended that recovery 

time include at least two uninterrupted periods between midnight and 6:00 a.m., at 

least once in every 7 days (Belenky, et al., 1998; Rosekind, Neri, and Dinges, 1997; 

Caldwell, Caldwell, and Colon, 1998; Johnson et al., 1998). A number of studies 

found that more than 34 hours were needed for drivers to recover fully from a long 

work week. Four studies that examined recovery all concluded that 36 hours was 

not enough (Lille, 1967, Hildebrandt et al., 1975, Mallette, 1994 and Wylie et al., 

1997). Three of these studies involved rotating shift or night shift workers, and not 

day shift workers; one study included both day and night shift workers. Wylie et 

al., 1997 (extension of the U.S./Canada study) suggested that, based on sleep structure and length, as well as lane tracking performance, 36 hours are not sufficient 

for recovery, particularly for night drivers. FMCSA also conducted two laboratory 

studies of the 34-hour restart provision. 

• Phase 1—Findings: The 34-hour restart was effective at mitigating sleep loss 

and consequent performance impairment for daytime drivers, but not effective 

for nighttime drivers. FMCSA tested a new restart provision primarily for night 

drivers that required a minimum of 34 hours off duty but must contain two 

night rest periods 1:00 to 5:00 a.m. 

• Phase 2—Findings: For nighttime drivers, the 2-night provision works better 

than one night to mitigate driver fatigue. 

In MAP 21, Congress requested a field study on the efficacy of the restart. The 

results of the field study were consistent with previous lab studies, the data were 

representative of drivers affected by maximum driving time requirements, and the 

analysis was statistically valid. The study showed that having at least two nighttime periods from 1:00 a.m. until 5:00 a.m. in the restart break mitigates fatigue 

for nighttime drivers, both objectively and subjectively, by increasing the total 

amount of sleep obtained during that restart break. 

Question 3. Some have suggested that fatigue doesn’t play a big role in crashes. 

Why is DOT concerned about the impact of fatigue on drivers? 

Answer. It is a well-known fact that fatigue is underreported in the national databases (Banerjee et al., 2009; NHTSA website, AAA Foundation: Brian Tefft. 2014). 

When a police officer investigates a crash, a surviving CMV driver is not likely to 

admit being fatigued. Under-reporting of fatigued driving is most likely due to lack 

of firm evidence since the investigation is done after the crash; the lack of awareness among drivers of the role that fatigue may have played in the crash; driver 

reluctance to admit being tired or falling asleep; and, in some cases, the death of 

the driver. Therefore, FMCSA has to rely on research studies that specifically investigated driver fatigue as a factor in truck crashes. The Large Truck Crash CausaVerDate Nov 24 2008 14:09 Oct 23, 2015 Jkt 075679 PO 00000 Frm 00052 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\97249.TXT JACKIE
49 

tion Study (LTCCS) provided data from a nationally representative sample of large 

truck fatal and injury crashes. Data were collected on up to 1,000 elements in each 

crash. The total sample involved 967 crashes, which included 1,127 large trucks, 959 

non-truck motor vehicles, 251 fatalities, and 1,408 injuries. Fatigue was listed as 

a contributing factor in 13 percent of the crashes in the LTCCS. Research conducted 

by the National Transportation Safety Board (NTSB) has estimated that fatigue is 

associated in 31 percent of crashes (though that figure is for truck crashes fatal to 

the driver). The NTSB also observed that ‘‘truck driver fatigue may be a contributing factor in as many as 30 to 40 percent of all heavy truck accidents.’’ 

FMCSA has always been conservative in estimates of the role of fatigue in crashes. If the estimates from the LTCCS are correct, that means that fatigue was a factor in more than 515 fatalities and 12,350 injuries on the Nation’s highways in 

2013. 

Question 4. Earlier this year, the Committee heard testimony from a trucking 

company, who said most of its drivers never come close to hitting the maximum 

weekly hours of service limit. Is that true of most companies? If so, why are those 

companies so concerned about this rule that doesn’t impact them? 

Answer. Safety is FMCSA’s top priority and the December 2011 hours-of-service 

final rule is intended to prevent motor carriers from requiring or allowing truck 

drivers to remain behind the wheel after working more than 70 hours, week after 

week. 

Yes, it is true that many drivers do not work the maximum number of hours possible under the HOS rules. The hours-of-service regulations are directed toward 

those who do. Drivers who do not work the maximum hours should feel little impact 

from the revised provisions. Some associations and carriers have reported that there 

are ‘‘unintended consequences’’ from the new provisions; however, FMCSA has no 

documentation of the extent of these ‘‘consequences.’’ 

The Agency’s senior leadership team met with the American Trucking Associations on May 8, 2014. It is not clear from the examples presented that the 34-hour 

restart restrictions would have an adverse impact on schedules that comply with the 

60- and 70-hour rules (i.e., the drivers did not reach a point where a restart was 

necessary in order to maintain the schedule). For example, one of the carriers presented a schedule showing 11-hour shifts, Monday through Friday, with an occasional 11-hour shift on Saturday. This schedule could never be run under the 60- 

hour rule, with or without the restart option, because the driver would hit the 60- 

hour on-duty limit during the shift on Saturday. And under the 70-hour rule (if the 

motor carrier operates CMVs every day of the week) there is no need to use the 

restart—the drivers could work six 11-hour shifts (Monday through Saturday) without running out of time. They could then begin a new work week Monday morning, 

at a time of the carrier’s choosing. 

It is thus unclear why so many companies appear to be concerned, or indeed, if 

recent assertions or widespread concern are accurate. It is worth noting that very 

few groups of carriers have taken advantage of the opportunity to formally request 

an exemption from any of the hours of service regulations (49 CFR Part 381). 

Question 5. Since Congress stopped enforcement of some provisions of the rule, 

are there other issues we should consider revisiting as well—like limiting the number of hours per day drivers can drive or examining the need for any restart? 

Answer. The hours-of-service (HOS) final rule (76 FR 81134), effective February 

27, 2012, with delayed compliance on some provisions until July 1, 2013, was an 

exhaustive effort to review all concerns about the HOS rules. The Agency obtained 

input from drivers, the industry and the public, through written comments and public listening sessions. The rulemaking considered hundreds of research studies and 

was based on many years of HOS research and experience at FMCSA. The U.S. 

Court of Appeals for the District of Columbia Circuit upheld the final rule, with a 

minor exception. American Trucking Associations v. Federal Motor Carrier Safety 

Administration, 724 F.3d 243 (D.C. Cir. 2013). The Court opined that ‘‘our decision 

today brings to an end much of the permanent warfare surrounding the HOS rules.’’ 

Although the Agency used the most comprehensive data available in the 2011 rulemaking, FMCSA is committed to continuing research into fatigue and the HOS 

rules. 

Question 6. Are there other issues—like driver pay and company pressure—that 

are pushing drivers to work longer hours? Should we address those issues in conjunction with hours of service? 

Answer. Drivers frequently report that low pay is a reason they need to work as 

many hours as possible. One problem for them is that CMV drivers, among others, 

are exempt from the overtime provisions of the Fair Labor Standards Act. As a result, they are often unnecessarily delayed by shippers and receivers, who have limVerDate Nov 24 2008 14:09 Oct 23, 2015 Jkt 075679 PO 00000 Frm 00053 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\97249.TXT JACKIE
50 

ited incentives to resolve the issue. President Obama’s GROW AMERICA Act would 

require that drivers be paid during these delays and give the FMCSA new authority 

over contractors who exercise direct control over a motor carrier’s operations. Under 

the authority provided in MAP–21, FMCSA is preparing new regulations to address 

the coercion of drivers to violate the Federal Motor Carrier Safety Regulations. 

Question 7. A fatal, multi-vehicle truck accident can cost over $20 million to compensate families, care for the injured, and pay for the destruction of our Nation’s 

highway infrastructure. However, the requirement to carry at least $750,000 in 

minimum insurance has not been increased in 30 years, even to account for inflation, which has led to taxpayers having to foot the bill in the aftermath of major 

truck accidents. 

Administrator Darling, FMCSA issued a report recognizing the current minimum 

insurance level as inadequate. What steps can Congress take in transportation reauthorization to reduce the unfair, economic burden that truck crashes are placing on 

the American people? 

Answer. Section 32104 of MAP–21 directed the Secretary of Transportation (DOT) 

to issue a report to Congress on the appropriateness of the current minimum financial responsibility requirements for motor carriers of property and passengers, and 

the current bond and insurance requirements for freight forwarders and brokers. 

The statute also requires that the Secretary report on the adequacy of the financial 

responsibility limits every four years thereafter. FMCSA’s April 2014 report fulfilled 

the statutory requirement for the initial report. And given the findings that certain 

crashes occur for which the current levels appear inadequate, the Agency tasked it 

Motor Carrier Safety Advisory Committee to provide recommendations on how best 

to address this challenge. The Agency also sought public comment through publication of an Advance Notice of Proposed Rulemaking (ANPRM), a rulemaking notice 

in which a series of questions were presented without any proposal for changes to 

the minimum levels of insurance. The Agency is currently reviewing the public comments submitted in response to the ANPRM. No decision has been made concerning 

future regulatory action. 

With regard to the question about the burden on the economic consequences on 

the general public for truck-related crashes, a previous FMCSA-sponsored study on 

this issue identified the issue of cost transference as it relates to severe truck crashes. However, the study did not provide an estimate of the aggregate amount of final 

judgments against motor carriers that exceeded the limits of the insurance coverage 

for those carriers. 

Question 8. Why is it important that the Administration reviews minimum insurance levels? 

Answer. Section 32104 of MAP–21 directed the Secretary of Transportation (DOT) 

to issue a report to Congress on the appropriateness of the current minimum financial responsibility requirements for motor carriers of property and passengers and 

the current bond and insurance requirements for freight forwarders and brokers. 

Additionally, the statute requires that the Secretary report on the adequacy of the 

financial responsibility limits every four years thereafter. FMCSA’s April 2014 report fulfilled the statutory requirement for the initial report. Given the findings that 

certain crashes occur for which the current levels appear inadequate, the Agency 

tasked its Motor Carrier Safety Advisory Committee to provide recommendations on 

how best to address this challenge. 

FMCSA has made no decision concerning future regulatory action on motor carrier financial responsibility requirements. On November 28, 2014, we issued an Advance Notice of Proposed Rulemaking (ANPRM) pertaining to financial responsibility. In that ANPRM, we sought information through a series of questions pertaining to a potential increase in the financial responsibility limits as well as other 

issues relating to personal injury and bodily injury damages that exceed the levels 

of minimum financial responsibility. We did not present any proposal for changes 

to the minimum insurance levels. Once the Agency has fully analyzed the information that we received through the ANPRM (more than 2,100 comments were received), we will decide on next steps and will make that information public. 

While Congress did not direct the Agency to initiate a rulemaking concerning financial responsibility, the findings from the statutorily mandated study obligated 

the Agency to seek public engagement in the process for determining whether 

FMCSA should propose changes to the requirements. 

Question 9. In the last surface transportation reauthorization, Congress required 

that the final rule mandating electronic logging devices on trucks was to be issued 

by October 2013, nearly a year and a half ago. Why is this important safety rule 

so far behind schedule? Is this rule being executed as a high priority? 

51 

Answer. Finalizing the Electronic Logging Device rule is a top priority for me and 

the Department of Transportation. By leveraging innovative technology with ELDs, 

we have the opportunity to save lives and boost efficiency for both motor carriers 

and safety inspectors. The rule will increase compliance with the hours-of-service 

rule (HOS) and decrease the risk of fatigue-related crashes. The proposed rulemaking will also significantly reduce the paperwork burden associated with hoursof-service recordkeeping for interstate truck and bus drivers. 

FMCSA published a supplemental notice of proposed rulemaking (SNPRM) in the 

Federal Register on March 28, 2014, followed by a 60-day comment period which 

was extended on May 16 for an additional 30 days. We received more than 1,750 

comments which we are currently reviewing. Given the scope of this rulemaking and 

the related studies the Agency undertook, we were not able to meet the statutory 

timeframes. However, we will continue to work hard towards a September 2015 

publication of a final rule. The Agency has already started planning for the rule’s 

implementation. 

Question 10. FMCSA has quite a number of languishing and overdue rulemakings 

that have been required by Congress in statute. Could you please submit for the 

record a detailed list of current congressional requirements, the agency’s current 

timeline for completion of these rulemakings, and detailed explanations as to why 

congressional deadlines have not been met? 

Answer. MAP–21 contained more than 40 statutory provisions that either directly 

required a rulemaking action or could require a rulemaking action depending on a 

study or other preliminary work. To date, FMCSA has completed rulemaking actions on 23 of those requirements. The attached table provides updated information 

on the status of the outstanding actions. 

FMCSA Pending Rulemakings—Revised 4/7/15 

RIN Title Stage Statute Publication Date Status/Comments 

AB20 ELD & HOS 

Supporting Docs 

Final 

Rule 

Court Decision, 

MAP–21 32301 

September 2015 SNPRM published 3/28/14, comment period ended 6/26/14 

(1761 comments in the docket 

on the SNPRM). Final Rule in 

Agency review. 

AB11 Safety Fitness 

Determination 

NPRM None; NTSB rec 

H–99–06 

July 2015 NPRM in Departmental review. 

AB57 Coercion Final 

Rule 

MAP–21, 32911 September 2015 NPRM published 5/13/14, comment period ended 8/11/14 (90 

comments). Final Rule in Agency review, 

AB66 Entry Level Driver 

Training 

NPRM MAP–21; 32304 October 2015 Negotiated Rulemaking. Committee meetings began 2/26 and 

are scheduled to occur approximately every two weeks through 

May. 

AB44 Bus Leasing 

Requirements 

Final 

Rule 

None; NTSB rec 

H–09–33 & 

H–09–36 

September 2015 NPRM published 9/20/13, comment period ended 11/19/13 (12 

comments). Final Rule in Agency review. 

AB40 National Registry 2 Final 

Rule 

MAP–21, 32302 April 2015 Final Rule published 4/23/15. 

AB18 Drug & Alcohol 

Clearinghouse 

Final 

Rule 

MAP–21, 32402; 

NTSB rec 

H–01–25 

January 2016 NPRM published 2/20/14, comment period ended 5/21/14. (161 

comments). Final Rule being developed. 

AB56 URS 2 NPRM MAP–21, 32106 April 2016 NPRM being developed. 

AB63 Speed Limiters NPRM None June 2015 Joint rule with NHTSA. NPRM 

in Departmental review. 

AA95 Qualifications of 

Drivers; Diabetes 

NPRM None; MRB 

Recommendations 

April 2015 NPRM published 5/4/15. Comment period ends on 7/6/15. 

52 

FMCSA Pending Rulemakings—Revised 4/7/15—Continued 

RIN Title Stage Statute Publication Date Status/Comments 

AB61 Tank Vehicle 

Definition 

Final 

Rule 

None; Petitions May 2015 NPRM published 9/26/13, comment period ended 11/25/13 (17 

comments). Final Rule in Agency Review. 

AB74 Financial 

Responsibility 

ANPRM None TBD The ANPRM published 11/28/ 

14, comment period ended 2/26/ 

15. (2100 comments), currently 

analyzing comments. 

AB67 FMVSS NPRM None April 2015 NPRM in Agency review. 

AB75 Civil Penalties 

Inflation 

Adjustment 

Final 

Rule 

None March 2015 Final Rule published 4/3/15. 

AB68 CDL Requirements 

of MAP–21 and the 

Military CDL Act 

of 2012 

NPRM MAP–21 February 2016 NPRM being developed. 

AB47 Electronic 

Signatures (RRR) 

Final 

Rule 

None; RRR NPRM published 4/28/14, comment period ended 6/27/14 (15 

comments). Final Rule being developed. 

AB17 New Entrant 

Testing 

ANPRM MAP–21 ANPRM published 8/29/09; 3 

listening sessions and roundtable held in 2014 

Additionally, the Committee requested information on two rules that are listed in 

the March 2015 Department of Transportation (DOT) report on significant 

rulemakings identified as delayed due to ‘‘other, higher priorities.’’ The first is the 

Certification of Safety Auditors, Safety Investigators, and Safety Inspectors rulemaking. As there has been an Interim Final Rule (IFR) in place since January 2004, 

and the Agency continues to work effectively with the Commercial Vehicle Safety 

Alliance concerning training and certification standards for individuals conducting 

roadside inspections, FMCSA has not established a schedule to complete this Final 

Rule. Although a Final Rule is required to close out the matter, completion of the 

rulemaking is not a priority at this time given the FMCSA’s focus on other 

rulemakings that offer greater safety benefits. 

The second rulemaking is the Limitations on the Issuance of Commercial Driver 

Licenses with a Hazardous Materials Endorsement rulemaking. Similarly, FMCSA 

has had an IFR in place since April 2005 which conforms to the IFR that the Transportation Safety Administration (TSA) published simultaneously. Because there are 

no transportation security gaps left unfilled by FMCSA’s IFR, the Agency has not 

made publication of a final rule a priority at this time as we expect no additional 

safety benefits from finalizing the IFR. 

In establishing its rulemaking priorities, FMCSA balances many competing factors such as safety benefits, Congressional mandates, presidential initiatives, such 

as Executive Order 13563, and petitions from our stakeholders. Our top rulemaking 

priorities for calendar year 2015 are to publish the Final Rule on Electronic Logging 

Devices and the Notices of Proposed Rulemaking on Safety Fitness Determination 

and Entry-Level Driver Training. Additionally, we anticipate completing the Final 

Rules on Coercion and the Drug and Alcohol Clearinghouse, as well as making substantial progress on drafting the Notice of Proposed Rulemaking for the Unified 

Registration System (which addresses certain MAP–21 requirements). Priority 

rulemakings for 2015 will address seven of the remaining MAP–21 rulemaking requirements. 

Question 11. The Department has a system—known as Compliance, Safety and 

Accountability or CSA—to help improve truck safety by tracking data and targeting 

companies for intervention. Some have raised concerns about the program and have 

suggested that data—like crashes that aren’t the fault of the truck driver—shouldn’t 

be used in the program. Have you taken any corrective actions to address criticisms 

of CSA? 

Answer. Since implementation in 2010, the Safety Measurement System (SMS) 

has been revised several times to enhance the system as the Agency gained experience with it and to address concerns of stakeholders. I want to stress that these 

53 

changes are enhancements to an already robust safety tool. Most recently, on 

July 24, 2014, FMCSA announced enhancements to the display of information on 

the public SMS website and responded to comments received in response to 

FMCSA’s Federal Register Notice, ‘‘Proposed Enhancements to the Motor Carrier 

Safety Measurement System (SMS) Public Website’’ published on November 5, 2013. 

The enhancements were a continuation of the Agency’s efforts to provide law enforcement, the motor carrier industry, and other safety stakeholders with more comprehensive, informative, and regularly updated safety performance data. This set of 

enhancements included modifications to the public SMS display, including four additional changes not originally proposed that resulted from comments received. These 

enhancements were implemented in August 2014. 

In addition, FMCSA will soon publish another notice in the Federal Register and 

seek comments on an additional set of proposed enhancements to the SMS public 

website. Consistent with its prior announcements, the Agency is proposing changes 

to the SMS that are the direct result of feedback from stakeholders and the Agency’s ongoing continuous improvement efforts. In addition, these changes are supported by not only the Agency’s analysis, but research and analysis conducted by 

industry and other independent groups. The Agency is considering several changes 

through this notice and will be asking for comment on these issues, and other possible areas for consideration. The proposed set of enhancements would include 

changing SMS intervention thresholds to better reflect the Behavior Analysis Safety 

Improvement Category’s (BASIC) correlation to crash risk, other changes to the 

Hazardous Materials Compliance BASIC, moving violations for operating while outof-service to the Unsafe Driving BASIC, and changes to provide credit for companies 

who have very high vehicle utilization of their vehicles. 

In compliance with Congressional direction, we are conducting further study of 

the data sufficiency requirements. 

Question 12. Why does the Department use data about crashes, even if they 

weren’t the fault of the truck driver? Shouldn’t drivers be able to challenge questions violation and crash reports? 

Answer. Through analysis that has been re-verified over time, FMCSA has confirmed motor carriers that have been involved in a high number of crashes are more 

likely than other carriers to be involved in future crashes regardless of the role of 

the carrier in the crash. 

Although FMCSA uses all crashes in the SMS to identify motor carriers for intervention, the Agency does not display the SMS Crash Indicator BASIC score on the 

public website, recognizing the concerns of the industry relating to the carrier’s role 

in the crash. In addition, the crash information on the SMS website clearly advises 

that ‘‘Crashes listed represent a motor carrier’s involvement in reportable crashes, 

regardless of the carrier’s or driver’s role in the crash.’’ 

In addition, FMCSA fully considers crash preventability before issuing a safety 

rating to ensure that a carrier does not receive an adverse safety fitness rating because of a crash that was considered to be non-preventable. Using all crashes for 

prioritization, but only preventable crashes for safety fitness determinations, balances the concerns of the industry with FMCSA’s mission to protect the motoring 

public by using the best performance data currently available. 

FMCSA has stopped short of making decisions about preventability for several 

reasons. First, crashes as a whole are extremely complex events, and trying to make 

a determination after the fact is difficult, costly and time consuming. In addition, 

the Agency has concerns about making judgments that can have a significant impact on private liability issues. Finally, the reliability and completeness of the data 

to make these judgments are open to question. 

The results of the ‘‘Crash Weighting Analysis’’ did call into question the usefulness of making decisions about a carrier’s role in the crash when the reports were 

compared with other data sources. Understanding the concerns about these issues, 

including how the Agency would manage these issues for over 100,000 reportable 

crashes annually, the Agency sought public comments (Federal Register, 

February 19, 2015) on this issue and will use this input as it identifies appropriate 

next steps regarding the Crash Indicator BASIC in the SMS. 

Carriers and drivers may submit documentation regarding violations and crashes 

through FMCSA’s DataQs system. The motor carrier’s records are adjusted for adjudicated citations or erroneous violations. 

Question 13. A few decades ago, a unionized truck driver made today’s equivalent 

of $44.83 per hour. Today a truck driver is lucky to make half of that. One study 

by Rutgers University found Independent contractors in New Jersey reported earning less than $10 per hour while employee drivers earned around $12 per hour. 

54 

Truck accidents are on the rise while the wages of driver are in decline. We are 

paying the folks responsible for moving the goods the country depends on extremely 

low salaries. These men and women must now push themselves to the brink of 

human exhaustion just to feed their families or save up to send their children to 

college. I have to wonder how that impacts safety. Administrator Darling, do you 

share similar concerns? How does the Administration’s surface transportation proposal address this issue? 

Answer. While FMCSA cannot comment on the specific salary levels referenced 

in your inquiry, the Agency shares your concern about the link between driver earnings and safety. This concern is particularly acute for long-haul drivers who may 

work extended hours that increase the risk of fatigue. Drivers often experience long 

periods of detention time at shipper or receiver facilities—time for which they feel 

they are not compensated, thus, resulting in pressure to drive beyond the hours of 

service limitations as a matter of economic necessity. This is especially serious for 

drivers compensated by the mile or trip but not by the hour. 

Under GROW AMERICA, the Secretary of Transportation would be given the authority to adopt regulations that would require motor carriers to compensate these 

drivers, whether they are employees and independent contractors, for on-duty, notdriving periods at an hourly rate not less than the Federal minimum wage (this 

would not affect drivers covered by a collective bargaining agreement that governs 

compensation for these periods). While the Agency recognizes this issue as a problem, it is not easily quantified. Thus, the Agency is in the initial stages of a study 

that evaluates driver compensation methods in connection with safety. The Agency 

hopes to complete this study this year. 

Question 14. Between October 2011 and October 2014, FMCSA conducted the 

U.S.-Mexico Cross-Border Long-Haul Trucking Pilot Program to evaluate the ability 

of Mexico domiciled motor carriers to operate safely in the U.S. The pilot allowed 

certain Mexico domiciled motor carriers to operate throughout the U.S. for up to 3 

years. U.S. domiciled motor carriers were granted reciprocal rights to operate in 

Mexico for the same period. 

In January, DOT announced that it would move forward with opening the border 

to trucks domiciled in Mexico despite a report by the DOT Inspector General (IG) 

suggesting that the pilot program had not been able to generate statistically significant data, and therefore the future safety performance of Mexico domiciled carriers 

could not be determined. 

Administrator Darling, do you believe the amount of data derived from the 13 carriers in the pilot program was sufficient to make a safety determination for all 

Mexican domiciled long-haul carriers? 

Answer. As explained in FMCSA’s April 2011 Federal Register notice, the Agency’s analysis plan included the assessment of the safety performance of the Pilot 

Program as well as the large number of Mexican-owned or -domiciled Enterprise 

and Certificate motor carriers conducting long-haul operations beyond the commercial zones of the United States during the Pilot Program. The analysis of the Certificate and Enterprise carriers was conducted, in keeping with the Agency’s analysis 

plan, to provide complementary safety information as they operate substantially the 

same as the Pilot Program carriers under a different oversight regimen. It is noted 

that during the Pilot Program period, 351 new enterprise motor carriers received 

authority. 

Evaluating driver out-of-service (OOS) rates, vehicle OOS rates, brake violations, 

hour of service (HOS) violations, driver fitness violations, and moving violations, 

along with safety ratings and acute and critical violations, the primary criteria used 

to measure the safety of motor carriers operating in the United States, the analysis 

finds evidence that Mexico-domiciled motor carriers operating beyond the commercial zones had safety records that were equal to or better than the national average 

for U.S. and Canadian motor carriers operating in the United States. 

Based on the data available to FMCSA and the analysis in the Report to Congress, in conjunction with data developed for comparison purposes of other Mexican 

motor carriers with long-haul operations, FMCSA concludes that the Pilot Program 

successfully demonstrated that Mexican motor carriers can and do operate throughout the United States at a safety level equivalent to U.S. and Canada-domiciled 

motor carriers and consistent with the high safety standards that FMCSA imposes 

on all motor carriers authorized to operate in the United States. 

Question 15. What is your response to the concerns raised by the DOT IG in their 

report on the Cross-Border Pilot Program? 

Answer. The OIG was required to complete an audit of the Pilot Program within 

60 days of its conclusion. This OIG audit report was submitted to the Department 

and U.S. Congress on December 10, 2014, and included the Agency’s response. The 

55 

report documented that FMCSA implemented adequate monitoring and enforcement. The OIG report noted that although security concerns existed for FMCSA personnel, the agency substantially complied with the Section 350 requirements. 

The OIG also noted that FMCSA established a sufficient mechanism to determine 

the Pilot Program participants’ impact on safety. The OIG confirmed FMCSA’s findings and conclusions regarding Pilot Program carriers’ safety performance. 

The OIG report indicated that the Pilot Program lacked an adequate and representative sample to make confident projections regarding long-haul operations by 

Mexico-domiciled motor carriers. Based on its statistical analysis, which was statutorily limited to the Pilot Program carriers, the OIG concluded that the participation 

of 15 carriers, in relation to the 37 applicants, was not adequate to confidently 

project safety performance for an unknown future population. FMCSA’s April 13, 

2011, Pilot Program proposal estimated that 46 participant carriers would be needed to achieve the target of 4,100 inspections within 3 years based upon long-haul 

border crossing assumptions. At the time, FMCSA also stated that if participating 

carriers performed more crossings per week or enrolled more vehicles, then fewer 

carriers would be needed for the program. In fact, the 15 participating carriers did 

surpass FMCSA’s initial target of 4,100 inspections. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. MARIA CANTWELL TO

HON. CHRISTOPHER A. HART

Question 1. Do you believe increasing crude-by-rail movements constitutes an imminent hazard to American public safety? 

Answer. As the volume of crude-by-rail shipments has grown in recent years, several serious and often fatal accidents reflect substantial shortcomings in railroad 

operational integrity, tank car design, and emergency response capability that create an increased risk to the public. The Association of American Railroads (AAR) 

states that crude oil shipments have increased on Class I railroads from 4,700 carloads in 2006 to about 400,000 shipments in 2013. NTSB investigations conclude 

that the DOT–111 tank cars and the more robust CPC–1232 cars that are being 

used to move flammable liquids are not up to the task. Crude oil is increasingly delivered to the refinery by rail and is shipped via very long ‘‘unit trains’’ that can 

consist of more than a hundred tank cars, be more than a mile long, and travel in 

or near populated areas, environmentally sensitive areas, and highways. Growth in 

the North American energy landscape increases the likelihood for fires, explosions, 

and releases of hundreds of thousands of gallons of flammable liquids. 

Question 2. I’m sure you have looked at the draft rulemaking on Enhanced Tank 

Car Standards and Operational Controls for High-Hazard Flammable Trains, which 

is now under final review at the Office of Management and Budget. Do you believe 

tank cars should have thicker shells beyond the current standard? 

Answer. Yes. The NTSB has identified vulnerabilities in the DOT–111 tank car 

design with respect to tank heads, shells, and fittings that create unnecessary and 

demonstrated risks that can result in the release of a tank car’s product in an accident. Flammable crude oil frequently ignites and causes catastrophic damage. 

Federal requirements have not kept pace with technology, evolving demands 

placed on the railroad industry, and knowledge about hazardous materials and accidents. While the current AAR industry standards adopted for DOT–111 tank cars 

ordered after October 1, 2011, (CPC–1232) that are used to transport packing group 

I and II crude oil impose a level of protection greater than corresponding Federal 

requirements, recent accidents have demonstrated that these modifications do not 

offer adequate safety improvements. 

The NTSB continues to assert that tank cars of any successor specification transporting hazardous materials should be more puncture-resistant and include thermal 

protection systems. The existing tank car fleet, including DOT–111 and CPC–1232 

tank cars, should be retrofitted to a more robust performance standard. This can 

be accomplished through the incorporation of additional protective features such as 

full head shields, jackets, thermal insulation, top fittings protection, and thicker 

head and shell materials. Because the average service life of a tank car may run 

20 to 50 years, it is imperative that industry, the FRA, and PHMSA take action 

now to address hazards that otherwise would exist for another half-generation or 

longer. 

Question 3. Do you believe that braking systems must be improved beyond the 

current standard? 

Answer. Yes. The NTSB supports PHMSA’s proposal for improved stopping performance using braking systems that could reduce the likelihood of a tank car being 

punctured during a derailment. This proposal was included in its August 1, 2014, 

56 

notice of proposed rulemaking (NPRM), Hazardous Materials: Enhanced Tank Car 

Standards and Operational Controls for High-Hazard Flammable Trains outlining 

new operational requirements and improved tank car standards for certain trains 

transporting large volumes of hazard Class 3 flammable liquids. The NPRM would 

require that all high-hazard flammable trains (HHFTs) be equipped with improved 

braking systems (either distributed power units, two-way end-of-train devices, or 

electronically controlled pneumatic brakes). 

The NTSB also believes that lower speeds combined with these improved braking 

systems would reduce the risk of tank car punctures as well. Because lower operating speeds reduce the kinetic energy in a train consist, they could, if coupled with 

improved stopping ability, minimize the dynamic behavior and number of tank cars 

involved in an accident. 

Question 4. Is it your opinion that an unjacketed CPC–1232 tank car is not a significant and substantial safety improvement over the legacy DOT–111 (jacketed or 

unjacketed)? 

Answer. The NTSB has investigated several accidents recently, such as the 

Lynchburg derailment and fire a year ago involving the newer cars, in which the 

train was going less than 25 mph and still resulted in the breach of a 1232 car. 

The NTSB has concerns and is still analyzing evidence from these accidents. While 

the current AAR industry standards adopted for DOT–111 tank cars ordered after 

October 1, 2011, that are used to transport packing group I and II crude oil impose 

a level of protection greater than corresponding Federal requirements, these accidents have demonstrated that these modifications do not provide significant safety 

improvements. While the NTSB does not specify the exact thickness in its recommendations, we know that the robustness must be improved, along with thermal 

protection, to avoid catastrophic fires and explosions. 

These accidents demonstrate that tank cars provided with increased puncture resistance, such as the CPC–1232 tank car, when exposed to pool fire conditions, are 

still rupturing and releasing product at an unacceptable rate. 

Transport Canada’s proposed replacement and retrofit implementation schedule 

provides until 2025 for all tank cars to comply with new performance standards, and 

the NTSB believes that a more comprehensive and aggressive implementation 

schedule, with transparent reporting of intermediate progress milestones, is necessary to ensure completion of tank car improvements within a reasonable time period. 

Question 5. Based on available data, do you believe that legacy DOT–111 (jacketed or unjacketed) and unjacketed CPC–1232 cars can even be retrofitted to a 

standard that will be safe enough to allow for continued use? 

Answer. Yes. The NTSB believes that these tank cars can be retrofitted for enhanced safety. For example, a unit train of 100 fully loaded 30,000-gallon tank cars 

may transport up to 3 million gallons of hazardous materials per train through populated and environmentally sensitive areas. The NTSB welcomes requirements for 

existing DOT–111 tank cars to be retrofitted with head shields and thermal protection, among other improvements. The safety benefits of new specification tank cars 

will not be realized while the existing tank car fleet remains in hazardous materials 

unit train service unless the existing cars are retrofitted. 

Question 6. The current rule under consideration at OMB does not address the 

volatility of the crude oil that is being transported. Is there evidence to suggest that 

the volatility of the crude oil in recent crude-by-rail accidents made the accidents 

worse, in terms of size and duration of resulting fires and explosions? 

Answer. While some of the crude oil being moved on the Nation’s railroad system 

is of a higher quality and thus is more volatile than some other Class 3 flammable 

liquids, recent accidents have not demonstrated that reducing the volatility is a solution. In fact, such an action results in other significant challenges, and may transfer—not eliminate—the risk posed by these materials. 

While Bakken formation crude may have more volatile properties, the NTSB’s investigations conclude that differences in crude’s volatility are not the key safety 

issue. 

Question 7. Is there reason to believe that reducing the volatility of the crude oil 

prior to shipment could reduce the severity of accidents? 

Answer. Reiterating the previous response, differences in the crude oil’s volatility 

is not the key safety issue. While the more volatile materials will result in a larger 

fire ball when a tank car thermal fails, this does not add significantly to the footprint of the damage. The pool fire (burning flammable liquid on the ground) causes 

the majority of the damage. The huge quantities of flammable crude being transported and the impact energy involved in an accident that breaches unsafe tank 

cars are the main causes for ignition and catastrophic fires. 

57 

Question 8. North Dakota will soon enact the first volatility standard for crude 

shipped by rail. The new standard is understood to be easily met with existing infrastructure in North Dakota. Should there be a nationwide, federally-enforced 

standard for volatility of crude shipped by rail? 

Answer. The NTSB recommends that any Federal standards focus on enhanced 

tank head and shell puncture-resistance systems, and top-fittings protection, rather 

than volatility. The huge quantities of flammable crude being transported by unit 

trains and the impact energy involved in an accident that breaches unsafe tank cars 

are the main safety issues warranting Federal enforcement. 

Question 9. Should such a Federal standard be more protective than the North 

Dakota standard? 

Answer. See above. 

Question 10. Rail tank car safety was on the NTSB’s 2015 ‘‘Most Wanted List’’ 

of safety improvements. In light of what has happened recently in West Virginia; 

Ontario, Canada; and Illinois, do you view October 2017 as an acceptable timeframe—from a safety perspective—to stop the use of the worst tank cars including 

DOT–111s for carrying crude oil? 

Answer. For more than 20 years the NTSB has identified a range of 

vulnerabilities in the DOT–111 tank car design, including tank heads, shells, and 

fittings that create an unnecessary, unacceptable, and demonstrated risk, which 

may result in the catastrophic release of a tank car’s product in an accident. The 

NTSB continues to find that accidents involving the rupture of DOT–111 tank cars 

carrying hazardous liquids often have violent and destructive results. Phasing out 

DOT–111 tank cars is already overdue and every day that goes by with this unsuitable equipment in crude oil transport operations creates an unnecessary risk of a 

tragic disaster. 

Accordingly, the proposed time-frame released by Transport Canada to allow until 

2025 for replacement of these unacceptable tank cars is too long. 

Question 11. Looking at crude-by-rail accidents and subsequent explosions since 

the tragedy in Quebec, how many, if any, were made worse by poor braking performance—that is to say, the so-called ‘‘pile-up’’ of cars after the initial derailment? 

a. Which ones? b. By what magnitude? 

Answer. The NTSB has long focused on preventing accidents in the first place. 

While we have not issued recommendations to improve braking in these past investigations, we continue to look at braking performance in on-going investigations. We 

do not have the data to respond to sub-questions a. and b. 

Nevertheless, the NTSB supports PHMSA’s proposal for improved stopping performance using braking systems that could reduce the likelihood of a tank car being 

punctured during a derailment. 

Question 12. Do you believe that the actions currently underway by the Administration will adequately address the concerns raised in this year’s NTSB’s ‘‘Most 

Wanted’’ list of suggestions, prior to the release of your 2016 list? 

Answer. While there is a lot of work that needs to be done to address the NTSB’s 

concerns raised in this year’s Most Wanted List related to rail tank car safety, the 

NTSB is pleased that some progress has been made. PHMSA published a notice of 

proposed rulemaking (NPRM) on August 1, 2014, Hazardous Materials: Enhanced 

Tank Car Standards and Operational Controls for High-Hazard Flammable Trains. 

PHMSA proposes, in coordination with FRA, new operational requirements and improved tank car standards for certain trains transporting large volumes of hazard 

Class 3 flammable liquids. It also proposes revising the general requirements for 

offerors to ensure proper classification and characterization of mined gases and liquids. The NTSB remains engaged in that rulemaking and in NTSB comments dated 

September 26, 2014, we urged PHMSA and FRA to address the following six recommendations as promptly as possible. 

To PHMSA: 

• Require that all newly manufactured and existing general service tank cars authorized for transportation of denatured fuel ethanol and crude oil in Packing 

Groups I and II have enhanced tank head and shell puncture resistance systems and top fittings protection that exceeds existing design requirements for 

DOT-111 tank cars. (R–12–5) 

• Require that all bottom outlet valves used on newly manufactured and existing 

non-pressure tank cars are designed to remain closed during accidents in which 

the valve and operating handle are subjected to impact forces. (R–12–6) 

• Require that all newly manufactured and existing tank cars authorized for 

transportation of hazardous materials have center sill or draft sill attachment 

58 

designs that conform to the revised Association of American Railroads’ design 

requirements adopted as a result of Safety Recommendation R–12–9. (R–12–7) 

• Inform pipeline operators about the circumstances of the accident and advise 

them of the need to inspect pipeline facilities after notification of accidents occurring in railroad rights-of-way. (R–12–8) 

To the FRA: 

• Work with PHMSA to expand hazardous materials route planning and selection 

requirements for railroads under 49 CFR 172.820 to include key trains transporting flammable liquids as defined by AAR Circular No. OT–55–N and, where 

technically feasible, require rerouting to avoid transportation of such hazardous 

materials through populated and other sensitive areas (R–14–1) and; 

• Audit shippers and rail carriers of crude oil to ensure they are using appropriate hazardous materials shipping classifications, have developed transportation safety and security plans, and have made adequate provision for safety 

and security. (R–14–3) 

Since then, we also issued additional recommendations we hope will be part of 

the ongoing rulemaking. 

To PHMSA: 

• Require that all new and existing tank cars used to transport all Class 3 flammable liquids be equipped with thermal protection systems that meet or exceed 

the thermal performance standards outlined in Title 49 Code of Federal Regulations 179.18(a) and are appropriately qualified for the tank car configuration 

and the commodity transported. (R–15–14) 

• In conjunction with thermal protection systems call for in safety recommendation R–15–14, require that all new and existing tank cars used to transport all 

Class 3 flammable liquids be equipped with appropriate sized pressure relief devices that allow the release of pressure under fire conditions to ensure thermal 

performance that meets or exceeds the requirements of Title 49 Code of Federal 

Regulations 179.18(a), and that minimizes the likelihood of energetic thermal 

ruptures. (R–15–15) 

• Require an aggressive, intermediate progress milestone schedule, such as a 20 

percent yearly completion metric over a 5-year implementation period, for the 

replacement or retrofitting of legacy DOT–111 and CPC–1232 tank cars to appropriate tank car performance standards that include equipping these tank 

cars with jackets, thermal protection, and appropriately sized pressure relief devices. (R–15–16) 

• Establish a publicly available reporting mechanism that reports at least annually, progress on retrofitting and replacing tank cars subject to thermal protection system performance standards as recommended in safety recommendation 

R–15–16. (R–15–17) 

We will continue to monitor PHMSA’s progress and will ensure that decision-makers have the full benefit of the lessons the NTSB has learned through its investigations. The NTSB strongly believes in a three-tiered approach to rail safety involving 

industry, emergency planning and response organizations, and the public. Railroads 

must pursue aggressive mitigation strategies, adopt operating restrictions, apply 

better braking technology, conduct risk analyses to select the safest routes, and ensure that track inspection is of the highest quality and proper frequency. Railroads, 

communities, and emergency responders must develop comprehensive response 

plans, ensure their preparedness for responding to worst-case releases in accidents, 

and expand public awareness. Shippers must use the most robust tank cars available to lessen the consequences of accidents involving hazardous materials. 

We have urged PHMSA to move these critical safety initiatives forward promptly 

and to issue a final rule incorporating the proposed regulations without delay. We 

believe that the NPRM would provide balanced actions (with certain improvements 

suggested in our comment letter), improve safety in transporting large volumes of 

flammable liquids by railroad, and avoid overreliance on any single risk-reduction 

strategy. The NTSB’s deliberations on its 2016 Most Wanted List will weigh all 

these considerations and PHMSA’s timeliness heavily. 

59 

1Federal Register 79, no. 148 (August 1, 2014): 45016. 2 National Transportation Safety Board, Derailment of CN Freight Train U70691–18 With 

Subsequent Hazardous Materials Release and Fire, Cherry Valley, Illinois, June 19, 2009, Accident Report/RAR–12–01 (Washington DC: NTSB, 2012). 3Transportation Safety Board of Canada, Runaway and Main-Track Derailment, Montreal, 

Maine & Atlantic Railway Freight Train MMA–002, Mile 0.23, Sherbrooke Subdivision, LacMe ́gantic, Quebec, 06 July 2013 (Gatineau, Quebec, Canada: TSB, 2014). 

NATIONAL TRANSPORTATION SAFETY BOARD

Washington, DC, September 26, 2014 

U.S. Department of Transportation, 

Docket Management System, 

Docket Operations, M–30, 

Ground Floor, Room W12–140, 

Washington, DC. 

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

Dear Sir or Madam: 

The National Transportation Safety Board (NTSB) has reviewed the Pipeline and 

Hazardous Materials Safety Administration’s (PHMSA) August 1, 2014, notice of 

proposed rulemaking (NPRM), Hazardous Materials: Enhanced Tank Car Standards 

and Operational Controls for High-Hazard Flammable Trains.1 In this notice, 

PHMSA, in coordination with the Federal Railroad Administration (FRA), proposes 

new operational requirements and improved tank car standards for certain trains 

transporting large volumes of hazard class 3 flammable liquids. It also proposes revising the general requirements for offerors to ensure proper classification and characterization of mined gases and liquids. PHMSA notes that the proposed requirements are designed to reduce the frequency and consequences of accidents involving 

certain trains transporting large volumes of flammable liquids. The risks posed by 

such trains are illustrated in the catastrophic consequences of recent derailments 

at Casselton, North Dakota; Aliceville, Alabama; and Lac-Me ́gantic, Quebec, Canada. 

The NPRM addresses NTSB Safety Recommendations R–12–5 and R–12–6, which 

we issued on March 2, 2012, as a result of the June 19, 2009, derailment of an ethanol unit train of U.S. Department of Transportation (DOT) specification 111 (DOT– 

111) tank cars in Cherry Valley, Illinois.2 The NPRM also addresses Safety Recommendations R–14–1, R–14–3, R–14–4, and R–14–6, which we issued on January 

23, 2014. These recommendations were derived from our participation in the Transportation Safety Board of Canada (TSB) investigation of the July 6, 2013, accident 

in Lac-Me ́gantic, Quebec.3

The NTSB safety recommendations urge PHMSA to take the following actions: 

• Require that all newly manufactured and existing general service tank cars authorized for transportation of denatured fuel ethanol and crude oil in Packing 

Groups I and II have enhanced tank head and shell puncture-resistance systems and top fittings protection that exceeds existing design requirements for 

DOT–111 tank cars. (R–12–5) 

• Require that all bottom outlet valves used on newly manufactured and existing 

nonpressure tank cars are designed to remain closed during accidents in which 

the valve and operating handle are subjected to impact forces. (R–12–6) 

• Work with the FRA to expand hazardous materials route planning and selection 

requirements for railroads under Title 49 Code of Federal Regulations (CFR) 

172.820 to include key trains transporting flammable liquids as defined by the 

Association of American Railroads (AAR) Circular No. OT–55–N and, where 

technically feasible, require rerouting to avoid transportation of such hazardous 

materials through populated and other sensitive areas. (R–14–4) 

• Require shippers to sufficiently test and document the physical and chemical 

characteristics of hazardous materials to ensure the proper classification, packaging, and recordkeeping of products offered in transportation. (R–14–6) 

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

• Work with PHMSA to expand hazardous materials route planning and selection 

requirements for railroads under 49 CFR 172.820 to include key trains transporting flammable liquids as defined by AAR Circular No. OT–55–N and, where 

technically feasible, require rerouting to avoid transportation of such hazardous 

materials through populated and other sensitive areas. (R–14–1) 

60 

4The proposed rule defines a high-hazard flammable train as a one containing 20 or more 

carloads of a class 3 flammable liquid. The rule primarily affects unit train shipments of ethanol 

and crude oil because those commodities are most often transported in high-volume shipments 

in trains having 20 or more cars. 5 Association of American Railroads, Recommended Railroad Operating Practices for Transportation of Hazardous Materials, Circular No. OT–55–N (Washington, D.C.: AAR, 2013). 

• Audit shippers and rail carriers of crude oil to ensure they are using appropriate hazardous materials shipping classifications, have developed transportation safety and security plans, and have made adequate provision for safety 

and security. (R–14–3) 

We are pleased that you are taking a broad systems approach in this NPRM— 

encompassing accident prevention, mitigation, and emergency response—toward 

managing the safety risks posed by high-hazard flammable trains (HHFTs).4

PHMSA proposes to improve performance standards for existing tank cars and establish standards for new DOT specification 117 (DOT–117) and specification 117P 

(DOT–117P) tank cars. PHMSA also addresses classification and characterization of 

mined gases and liquids, requires rail routing risk assessment for HHFTs, requires 

notification to state emergency response commissions (SERC) of the operation of 

trains transporting 1 million gallons or more of Bakken crude oil in their jurisdictions, and requires reduced operating speeds and enhanced braking. 

The NTSB emphasizes the importance of implementing the six safety recommendations listed above as rapidly as possible. Furthermore, we are also concerned about several aspects of the proposed regulations: 

1. The proposed requirements for notifying state agencies about rail shipments of 

hazardous materials through their territories do not include ethanol. 

2. The proposed notification requirements are limited to shipments of crude oil 

from only one area (Bakken formation). 

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

4. The proposed classification and characterization rules do not include specific 

requirements for the sampling and testing needed to properly characterize hazardous materials destined for rail shipment. 

5. The proposed speed restrictions are based on a large populated area rather 

than on a potential impact radius where individuals could be harmed along 

flammable liquids rail corridors. 

6. The proposed enhanced standards for new and existing tank cars offer options 

that do not achieve an acceptable level of safety and protection. 

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

8. The proposed retrofitting requirements for existing DOT–111 tank cars do not 

require top fittings protection. 

9. The proposed bulk packaging standards would allow existing legacy DOT–111 

fleet to remain in flammable liquid service on trains not designated as HHFTs. 

Our comments follow the order in section V of the NPRM. We also respond to 

questions in section V that are germane to our safety recommendations and to other 

matters on which we have a basis for commenting. 

High-Hazard Flammable Trains 

Safety Recommendation R–14–4 urges PHMSA to include ‘‘key trains’’ carrying 

flammable liquids in its route-planning requirement. The recommendation refers to 

the definition of key train in AAR Circular No. OT–55–N, which lists 20 tank cars 

of any combination of hazardous material as the threshold number of tank cars in 

the consist.5 In referring to the AAR circular, we intended to suggest using a preexisting industry standard for route planning, but not to endorse a 20-tank-car 

threshold for HHFTs. We caution you not to use Safety Recommendation R–14–4 

to imply that we endorse a 20-tank-car threshold for any other purpose. 

Question 3. To what extent do the covered hazardous materials, including crude oil 

and ethanol, have differing risks when they are in HHFTs? 

As demonstrated in recent accidents, the two products have a similar potential 

for causing injuries, fires, energetic fireball eruptions, and property damage. Although the products behave differently in the environment and require different 

strategies for firefighting, containment, and cleanup, they pose similar hazards to 

property and persons, and should be treated similarly in the regulations. We believe 

61 

6 National Transportation Safety Board, Conrail Freight Train Derailment with Vinyl Chloride 

Release, Paulsboro, New Jersey, November 30, 2012, Accident Report NTSB/RAR–14–01 (Washington DC: NTSB, 2014). 7Title 42 United States Code, Chapter 116. 8 A Survey of Bakken Crude Oil Characteristics Assembled for the U.S. Department of Transportation (Prepared by Dangerous Goods Transport Consulting Inc. for American Fuel & Petrochemical Manufacturers, May 14, 2014). 9Study Report of the Bakken Crude Characterization Task Force (Prepared by Turner, Mason 

& Company for North Dakota Petroleum Council, August 4, 2014). 

that crude oil and ethanol should have identical packaging and operational requirements. 

PHMSA also seeks comment on the definition of an HHFT. We believe the definition should include a broad range of hazardous materials, similar to the revised definition of a key train in AAR Circular No. OT–55–N. The circular’s reference to ‘‘any 

combination of hazardous material’’ includes hazard class 2, division 2.1 (flammable 

gas) materials and combustible liquids, as defined at 49 CFR 173.115(a) and 

173.120(b). The provisions of the AAR circular demonstrate that the railroad industry recognizes that additional safety precautions, including speed restrictions, are 

needed for key trains that transport any hazardous materials. The proposed rule 

should be at least as protective as the AAR circular and should therefore apply to 

class 2 flammable gases such as liquefied petroleum gas. 

Notification to State Emergency Response Commissions 

Proposed 49 CFR 174.310(a)(2) would apply to any railroad that transports in a 

single train 1 million gallons or more of petroleum crude oil, hazard class 3 (identification number UN 1267), sourced from the Bakken shale formation in the 

Williston Basin (centered in North Dakota but extending to South Dakota and Montana in the United States and to Saskatchewan and Manitoba in Canada). The proposed rule would require railroads to provide written notification to SERCs of the 

estimated number of such trains expected to travel per week through each county 

in each state and of the routes over which the crude oil is to be transported. The 

notification would also describe the crude oil, give applicable emergency response information, and list at least one railroad point of contact. 

We recently completed our investigation of a November 2012 Conrail freight train 

derailment in Paulsboro, New Jersey, in which vinyl chloride was released.6 We concluded that active participation by railroads in local emergency planning would yield 

safer and more efficient responses to railroad accidents that result in the release 

of hazardous materials. In addition to notifying SERCs and local communities about 

the volume of hazardous materials traffic through their areas, we believe that carriers should provide communities with comprehensive emergency planning assistance. Accordingly, we issued the following safety recommendation to the DOT: 

Require railroads transporting hazardous materials through communities to 

provide emergency responders and local and state emergency planning committees with current commodity flow data and assist with development of emergency operations and response plans. (R–14–14) 

Although the NPRM does not specifically address Safety Recommendation R–14– 

14, it proposes that railroads notify emergency responders whenever a single hazardous commodity, Bakken crude oil, is transported in quantities of more than 1 

million gallons through their area. The intent of Safety Recommendation R–14–14, 

however, is to urge you to require railroads to provide notification and emergency 

planning assistance for all classes of hazardous material transported through communities, at thresholds such as the those established in the Emergency Planning 

and Community Right-to-Know Act for fixed facilities.7 We urge you to fully and expeditiously address Safety Recommendation R–14–14 in this rulemaking. 

We disagree with restricting the proposed notification requirement to petroleum 

crude oil sourced exclusively from the Bakken shale formation. We believe that proposed 49 CFR 174.310(a)(2) should apply at a minimum to all class 3 flammable 

liquids transported in an HHFT. The properties that make crude oil flammable and 

hazardous are not limited to oil sourced from the Bakken formation. As one recent 

study concludes, ‘‘Bakken crude oil does not pose risks significantly different from 

other crude oils or other flammable liquids.’’8 Bakken crude is also reported to be 

similar to crude oils from other geologic formations. For example, the light ends 

(ethane, propane, butane, pentane) of Bakken crude have been found to be comparable to those of oils produced elsewhere in North America, such as in the Eagle 

Ford formation in Texas.9

We are particularly concerned that ethanol, the other hazard class 3 commodity 

commonly transported in unit trains, is not included in the proposed notification reVerDate Nov 24 2008 14:09 Oct 23, 2015 Jkt 075679 PO 00000 Frm 00065 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\97249.TXT JACKIE
62 

10 Conrail Freight Train Derailment with Vinyl Chloride Release (Washington, D.C.: NTSB, 

2014). 

quirements. While comparative accident data are limited, we believe it likely that 

if ethanol rather than crude oil had been transported in the train that derailed in 

Lac-Me ́gantic, a similar massive pool fire would have resulted. Notification to emergency planners and responders of the presence of tank car shipments of ethanol in 

their jurisdictions is critical for the same reasons you propose notification requirements for shipments of crude oil. Communities must be prepared to respond to the 

firefighting challenges posed by ethanol accidents—by having alcohol-resistant firefighting foam readily available, for example—and to the difficulties associated with 

recovering ethanol released to the environment. 

Question 1. Whether codifying the requirements of the Order in the HMR is the best 

approach for the notification requirements, and whether particular public safety 

improvements could be achieved by requiring the notifications be made by railroads directly to emergency responders, or to emergency responders as well as 

SERCs or other appropriate state delegated entities. 

We note in our report on the Paulsboro, New Jersey, accident that unlike fixed 

facilities, railroads transporting hazardous materials are not required to work with 

communities to develop emergency plans.10 Emergency planning responsibilities 

should include providing: (1) emergency planning notification to both local and state 

emergency planning committees, (2) an emergency coordinator who participates in 

the local emergency planning process, (3) notice of any operational changes that 

could affect emergency planning, and (4) any information necessary to develop and 

implement local emergency plans. 

The absence of a regulatory requirement for railroads to notify and assist local 

emergency planning committees leaves communities unprepared to deal with releases of hazardous materials. We believe that the DOT emergency restriction/prohibition order targeting railroad transportation of crude oil from a single geographic 

region in the United States does not go far enough, and that community notification 

and planning should be required for all hazardous materials transported by rail. We 

have found that despite voluntary outreach and community awareness programs, 

such as the Transportation Community Awareness and Emergency Response program, many communities and emergency responders are unaware of and unprepared for the risks associated with hazardous materials traffic on railroads. For this 

reason, we issued the following safety recommendation to PHMSA: 

Require railroads transporting hazardous materials to develop, implement, and 

periodically evaluate a public education program similar to 49 CFR Parts 

192.616 and 195.440 for the communities along railroad hazardous materials 

routes. (R–14–19) 

We believe that the best approach to regulating notification would be to codify the 

requirements detailed in Safety Recommendations R–14–14 and R–14–19. 

Question 2. Whether the 1,000,000-gallon threshold is appropriate, or whether another threshold such as the 20-car HHFT threshold utilized in this NPRM’s 

other proposals is more appropriate. If you believe that a threshold other than 

1,000,000 gallons is appropriate, please provide any information on benefits or 

costs of the change, including for small railroads. 

We are concerned that 1 million gallons is significantly above a reasonable risk 

threshold. At that value, notification would apply only to trains with more than 

about 35 tank car loads. Yet catastrophic derailment failure involving even a single 

tank car loaded with flammable liquid can cause extensive destruction and loss of 

life. Therefore, we believe that the notification threshold should be significantly 

lower. In addition, the threshold should be based on the worst-case consequences of 

a derailment resulting in fire. At a minimum, the threshold should be set no higher 

than the value in the proposed definition of an HHFT. 

Question 6. Whether such information should be deemed SSI, and the reasons indicating why such a determination is appropriate, considering safety, security, and 

the public’s interest in information. 

We believe that notification information should raise the awareness of both the 

general public and stakeholders about hazardous materials routes running through 

their communities. Having an informed public along rail routes could supplement 

a carrier’s safety measures and help reduce the consequences of emergencies involving hazardous materials. Classifying routing information about hazardous materials 

63 

as ‘‘security sensitive’’ would unreasonably restrict the public’s access to information 

that is important to its safety. 

An informed public can be prepared to implement protective actions when accidents occur. While the general public may not require detailed information, such as 

the specific numbers, dates, and times of hazardous materials tank cars traveling 

on a route, people need to know whether they live or work near a hazardous materials route. They also need to be aware of the hazards associated with releases, 

what rail carriers do to prevent accidents and mitigate consequences, how to recognize and respond to an emergency, what protective action to take in the event of 

a hazardous materials release, and how to contact rail carriers regarding specific 

concerns. 

Rail Routing Risk Assessment 

We believe that the proposed rule, if implemented, would satisfy the intent of 

Safety Recommendation R–14–4, which urges PHMSA to: (1) expand the hazardous 

materials route-planning and selection requirements for railroads under 49 CFR 

172.820 to include key trains transporting flammable liquids, and (2) to require rerouting to avoid transporting hazardous materials through sensitive areas. You propose to expand current 49 CFR 172.820(a) by making it applicable to HHFTs. You 

also propose to create a new section, 49 CFR 174.310, which would subject HHFTs 

to the additional requirements in Part 172, Subpart I, for developing security plans 

for the transportation of hazardous materials. 

Proposed 49 CFR 174.310(a)(1) would require rail carriers that operate HHFTs to 

analyze the safety and security risks along the routes where such trains operate, 

to assess alternate routing options, and to make routing decisions based on the assessments. Rail carriers would be required to conduct an annual analysis addressing 

27 risk factors, such as volume of hazardous materials transported; track type, 

class, and maintenance schedule; track grade and curvature; environmentally sensitive or significant areas; population density along the route; emergency response 

capability along the route; and areas of high consequence along the route, as defined 

in 49 CFR 172.820(c). Carriers would also be required to identify alternate routes 

over which it has the authority to operate and to perform a safety and security risk 

assessment of those routes. Carriers would be required to use their risk analysis to 

select viable routes that pose the lowest overall safety and security risk. 

Classification and Characterization of Mined Gases and Liquids 

The proper classification and characterization of hazardous materials is a key requirement under the hazardous materials regulations. Classification (determination 

of a material’s hazard class based on certain physical properties) and characterization (determination of a material’s other relevant chemical and physical properties) 

are of paramount importance in selecting appropriate packaging, in assessing risks 

when developing safety and security plans, and in assuring the safety of emergency 

responders and other individuals who might come in contact with hazardous materials. The importance of accurate classification is underscored by your proposed 

phase-out schedule for DOT–111 tank cars in HHFT service. 

We are concerned that the proposed classification and characterization rule applies only to mined gases and liquids. We believe that the rules should apply to 

shippers of all hazardous materials, as is the intent of Safety Recommendation R– 

14–6. Although the current hazardous materials regulations prescribe test methods 

for assigning appropriate classifications, shippers are not required to maintain 

records showing that the physical and chemical properties of a hazardous material 

were sufficiently evaluated to justify the description and classification used in transporting it. 

We support the proposed 49 CFR 173.41 sampling and testing program. The proposed regulation addresses issues that prompted us to issue Safety Recommendation 

R–14–6, such as offerors using generic safety data sheets that result in improper 

classification of crude oil, rather than validating crude oil properties through testing. We are concerned, however, that the proposed rule does not include specific requirements for characterization tests that would identify the effects of a material 

on both the reliability and the safety of packaging. Physical testing would improve 

the evaluation of a material for its impact on operational and package selection requirements under the hazardous materials regulations. 

We agree with your proposal to require shippers to maintain records of sampling, 

testing, personnel training, and other elements of the program. Permanent records, 

electronic or paper-based, will provide evidence that a shipper is following the written program. Your proposal addresses the intent of the recordkeeping issue raised 

in Safety Recommendation R–14–6. 

64 

11Transportation Safety Board of Canada, Laboratory Report LP 148/2013, ‘‘Analysis of Crude 

Oil Samples’’ (Appendix K of Runaway and Main-Track Derailment, Montreal, Maine & Atlantic 

Railway Freight Train MMA–002), available online at www.tsb.gc.ca. 12See Conrail Freight Train Derailment with Vinyl Chloride Release (NTSB, 2014). 

PHMSA also seeks comment from the regulated community on the role of vapor 

pressure in the classification, characterization, and packaging of flammable liquids, 

and on whether regulatory changes to establish vapor pressure thresholds for packaging selection are necessary. We believe that setting vapor pressure thresholds for 

packaging selection would clarify package limitations for shippers and encourage 

them to select the safest tank car for transporting flammable materials. We understand that the purpose of a vapor pressure threshold would be to define the point 

at which volatile flammable materials would require transport in pressure tank 

cars. We suggest that you review the TSB laboratory report on the analysis of crude 

oil samples, which suggests that the size of a fireball resulting from the ignition of 

spilled crude oil strongly depends on vapor pressure.11

Question 3. Would more or less specificity regarding the components of a sampling 

and testing program aid offerers (sic) of shipments to be in compliance with proposed § 173.41? 

We believe the rule should specify minimum required properties of mined gas and 

liquids to be included in sampling and testing plans and that it should list acceptable test methods. Without uniform testing and sampling requirements, shippers 

are free to develop individual testing regimes, which can yield subjective characterizations of hazardous materials. Moreover, non-uniform testing will not support data 

analysis or enforcement. 

Question 4. Do the guidelines provides (sic) sufficient clarity to offerors to understand 

whether they are in compliance with these requirements? 

As noted in the NPRM, the American Petroleum Institute is developing Recommended Practice 3000 to spell out industry best practices for testing and sampling methods. We urge you to consider adopting an appropriate recommended practice or to provide specific guidance in the rule mandating uniform sampling and 

testing methods. 

Additional Requirements for High-Hazard Flammable Trains 

Speed Restriction 

We agree that HHFT speed restrictions are vital to reducing risks in the transportation of hazardous materials. Tank car crashworthiness is inversely related to train 

speed—that is, crashworthiness generally increases as speed decreases. Nevertheless, catastrophic tank car ruptures can occur at speeds below even 10 mph.12 We 

have not conducted or commissioned tests or research to examine the effects of different speeds. Therefore, we cannot comment about the specific values proposed in 

the NPRM. We nevertheless believe that lower operating speeds would yield safety 

benefits, especially if lower speeds were combined with distributed power units, twoway end-of-train devices, or electronically controlled pneumatic brakes. Because 

lower operating speeds reduce the kinetic energy in a train consist, they could, if 

coupled with improved stopping ability, minimize the dynamic behavior and number 

of tank cars involved in an accident. 

We interpret the proposed HHFT speed restrictions as follows: For tank cars that 

have enhanced brake systems and all DOT–117 tank cars, the speed limit would be 

50 mph. For tank cars with enhanced brake systems and some flammable liquids 

in non-DOT–117 cars, three options for speed restrictions are proposed: (1) 40 mph 

in all areas, (2) 40 mph in areas with populations of 100,000 or more, or (3) 40 mph 

in high-threat urban areas. For tank cars without enhanced brakes, the speed limit 

would be 30 mph. 

We disagree with your plan to set speed limits based on general population size. 

Instead, speed limits should be based on the population that is close enough to a 

derailment involving a flammable material to be in harm’s way. An exposure to a 

rail transportation hazard is inversely proportional to the distance away from the 

track. When comparing small and large population densities, the large population 

areas and high threat urban areas (HTUA) have greater security vulnerabilities, 

which you have offered as a basis for the proposed Option 3 speed restriction. However, accidental safety-related events have a much greater probability of occurrence 

than an intentional (criminal) action. Furthermore, we believe there is no credible 

train derailment scenario involving a flammable liquid event, accidental or intentional, involving even a unit train that could jeopardize a population of 100,000 or 

more or the population within an HTUA. 

65 

The proposed regulation for speed restrictions should be based on scenarios that 

might actually harm individuals, as is the approach used in the PHMSA gas pipeline regulations. Those regulations establish threat zones in which a potential impact radius (PIR) is calculated based on pipe size and operating conditions. The 

number of occupied buildings in a PIR is counted along the entire length of a pipeline. If the number of buildings exceeds the threshold PIR value, the pipeline is designated to be in a high-consequence area. The pipeline operator must then implement an integrity management program for that pipeline segment. We suggest that 

you could develop similar ‘‘impact radius’’ and ‘‘occupied building’’ criteria based on 

the specific fire and explosion hazards associated with an HHFT along a designated 

rail corridor. You could then assign speed restrictions to reduce the risk in that corridor. 

Question 7. What other geographic delineations—in addition to HTUAs and cities 

with 100,000 people or more—should PHMSA consider as an Option for a 40- 

mph speed restriction in the absence of a proposed DOT–117 tank car? 

We urge you to consider HHFT speed restrictions that specifically address reducing the risk of a major flammable liquid release into a navigable waterway or environmentally sensitive area. For example, an April 30, 2014, derailment of a crude 

oil unit train in Lynchburg, Virginia, released nearly 30,000 gallons of crude oil 

from one tank car into the James River, causing significant environmental damage. 

Alternative Brake Signal Propagation Systems 

The NPRM discusses improved stopping performance using braking systems that 

could reduce the likelihood of a tank car being punctured during a derailment. We 

agree with the proposal to require that all HHFTs be equipped with alternative 

brake signal propagation systems (either distributed power units, two-way end-oftrain devices, or electronically controlled pneumatic brakes). We further suggest 

that you prohibit the use of conventional locomotives for HHFT service. 

Enhanced Standards for New and Existing Tank Cars 

New DOT Specification 117 Tank Car 

PHMSA proposes new standards for tank cars used in HHFTs as Part 179, Subpart D. The new DOT–117 cars would offer improved crashworthiness over the current DOT–111 tank cars. The new standards address tank car head and shell puncture resistance, top fittings protection, and bottom outlet performance, which are addressed in Safety Recommendations R–12–5 and R–12–6; the new standards also 

address thermal protection systems. 

On April 22–23, 2014, we held a forum titled ‘‘Rail Safety: Transportation of 

Crude Oil and Ethanol.’’ Testimony at the forum suggested that regulators, railroad 

industry, tank car builders, and tank car owners disagree about the level of protection needed for tank cars that transport flammable materials. The lack of consensus 

continues as you are proposing three design options for tank cars built after October 

1, 2015, for use in transporting class 3 flammable liquids in HHFTs. The safety features for tank cars constructed under each option, as listed in Table 2 (‘‘Safety Features by Tank Car Option’’) of the NPRM, can be summarized as follows: 

• Option 1, the PHMSA-and FRA-designed tank car, would have full-height, 1/2- 

inch-thick head shields; a shell at least 9/16-inch thick constructed of TC–128 

Grade B normalized steel; an 11-gauge jacket with thermal protection system; 

a reclosing pressure-relief device; a top fittings protection system capable of sustaining rollover at 9 mph without failure; a removable handle on the bottom 

outlet (if present) or one designed to prevent unintended actuation in an accident; and electronically controlled pneumatic brakes. 

• Option 2, the AAR-recommended tank car, would have the same features as in 

option 1, except that top fittings would be equipped in accordance with AAR 

specifications for tank cars, and braking would be improved with distributed 

power or end-of-train devices. 

• Option 3, the enhanced CPC–1232 tank car, would have the same features as 

in option 2 except for a thinner (7/16-inch) tank shell. 

Safety Recommendations R–12–5 and R–12–6, regarding enhanced tank car specifications and retrofitting for ethanol and crude oil, are linked only to Packing 

Groups I and II. We believe, however, that you make a compelling argument for 

why enhanced packaging requirements should be required for HHFTs that transport 

materials in Packing Group III as well. We agree with you that large volumes of 

flammable material in any packing group transported in an HHFT pose significant 

safety and environmental risks in accidents (as summarized in Table 22 of the 

NPRM, ‘‘Enhanced Car Standards for Flammable Liquids in HHFT’’). We also agree 

66 

that requiring Packing Group III materials to be transported in a more robust tank 

car than currently used would reduce the potential for environmental damage by decreasing the probability of hazardous material releases. 

Testimony at the NTSB rail safety forum by advocates representing tank car owners suggests their continued support for construction to the CPC–1232 base standard, which unlike option 3, does not require a jacket, thermal protection, or fullheight head shields. Table 17 of the NPRM (‘‘Effectiveness of Newly Constructed 

Tank Car Options Relative to the Non-Jacketed DOT 111 Specification Tank Car’’) 

indicates that, based on modeling, the CPC–1232 standard would provide less puncture resistance than any of these options. The table also indicates that option 3 

would offer significantly less puncture resistance than options 1 and 2. The discussion in the NPRM of option 3 states, ‘‘This standard is the configuration PHMSA 

believes will be built for HHFT service in the absence of regulation. . . .’’ We are 

concerned that to the contrary, without a regulation, new tank cars will continue 

to be built to the less-protective CPC–1232 standard (non-jacketed, half-head shield) 

and that the railroad industry will not act to phase out or retrofit the existing DOT– 

111 fleet. 

We understand that as proposed, tank cars built to any one of the three options 

would be designated as DOT–117 cars. We are concerned that if so, carriers are likely to select option 3, which is the least costly (see NPRM Table 5, ‘‘20 Year Costs 

and Benefits by Stand-Alone Proposed Regulatory Amendments 2015–2034’’), even 

though that option offers the least improvement in safety. We therefore urge you 

to reexamine your plan to include all three options and instead, include only the 

option that achieves the highest level of safety and protection. 

You also propose an alternative performance-based design requirement for each 

tank design option. This ‘‘performance standard’’ is intended to encourage innovation and new materials that would provide puncture resistance and thermal protection equivalent to the DOT–117 options. Tank cars built to the performance standard would be classified as DOT–117P. 

We are concerned that the proposed performance standards do not give sufficient 

guidance for puncture-resistance tests. The proposed regulations at 49 CFR 

179.202–11(c), 179.203–11(c), and 179.204–11(c) give only minimum side impact 

speeds for head and shell puncture tests using a 12-inch-by-12-inch impactor, with 

no further discussion about test conditions or about how to interpret results. On 

July 18, 2014, Transport Canada proposed to amend Canada’s Transportation of 

Dangerous Goods regulations to require a new Class TC–140 tank car for rail transport of flammable materials. In contrast to your proposed regulations, Transport 

Canada proposes puncture resistance performance criteria that specify such details 

as geometry of the impacting punch, tank car outage and lading specific gravity, 

constraint on the tank, required alignment of the impactor with the tank, and when 

the impact test would be considered successful. We believe that your proposed rule 

should include similar requirements. 

Existing Tank Cars for High-Hazard Flammable Trains 

The NPRM addresses Safety Recommendations R–12–5 and R–12–6 with respect 

to the current DOT–111 fleet used in HHFT service. You propose to require that 

existing tank cars be retrofitted to meet performance standards for the applicable 

tank car specification option in Part 179, Subpart D. Retrofitted tank cars would 

meet the DOT–117P performance standard, except that they would not be required 

to add the top fittings protection. 

The reason retrofitting for top fittings protection would not be required in the proposed rule is that you believe the cost of such a retrofit is not supported by a corresponding safety benefit. You claim that ‘‘the volume of releases from top fittings 

is a fraction, typically less than 5 percent of the volume of releases from tank shell 

and head punctures.’’ Contrary to your claim, we call attention to data from two recent accidents showing that large volumes of flammable liquids were released 

through breaches in damaged top fittings alone (see table 1). 

Table 1. Releases of Flammable Liquids from Tank Cars Breached Only Through Top Fittings in Two Recent Accidents 

Accident Site Accident Date Car Number Lading (gal) Amount 

Released (gal) 

Percent of 

Contents 

Released 

Cherry Valley, IL June 2009 CITX 224236 28,757 26,357 92 

Cherry Valley, IL June 2009 CTCX 731599 28,800 20,700 72 

Cherry Valley, IL June 2009 NATX 303067 28,776 11,051 38 

Tiskilwa, IL October 2011 UTLX 208371 28,905 10,706 37 

67 

13Transportation Safety Board of Canada, Laboratory Report LP 149/2013. 

The Lac-Me ́gantic accident also clearly demonstrates the benefits of top fittings 

protection. The TSB accident investigation found that unprotected top fittings were 

breached in 16 out of 31 DOT–111 tank cars, while breaches occurred in only 4 of 

32 tank cars equipped with top fittings protection.13 In its accident report (p. 110), 

the TSB states: 

Without adequate top-fitting protection during a rollover, and without design 

improvements to bottom outlet valves, there is an increased risk of product release when general-service Class 111 [DOT–111] cars are involved in 

derailments. If Class 111 tank cars that do not meet enhanced protection standards transport flammable liquids, there is an ongoing risk of product loss and 

significant damage to persons, property, and the environment when these cars 

are involved in accidents. 

We strongly urges you to reconsider a retrofit requirement for top fittings protection on DOT–111 tank cars in continued crude oil and ethanol service, as requested 

by Safety Recommendation R–12–5. Safety Recommendation R–12–5 cannot be 

closed in an ‘‘acceptable’’ status unless existing tank cars are retrofitted with top 

fittings protection. 

Bulk Packaging Requirements 

We note that the proposed bulk packaging requirements in 49 CFR 173.241, 

173.242, and 173.243 provide phase-out periods in which DOT–111 tank cars would 

no longer be authorized for HHFTs. Continued use of DOT–111 tank cars in crude 

oil and ethanol service is not, however, explicitly prohibited in the proposed new 

regulation for trains containing 19 or fewer crude oil or ethanol tank cars. It is important to note that 19 tank cars can carry more than 500,000 gallons of flammable 

liquid. The proposed rule would therefore allow shippers to use tank cars that are 

less protective than the current (voluntary) industry standard. We urge you to correct the language in proposed CFR 49 173.241 through 243 by replacing ‘‘high-hazard flammable train service’’ with ‘‘flammable liquid service’’ in each paragraph. 

For Packing Group I, DOT–117 tank cars would be required after October 1, 2017; 

for Packing Group II, after October 1, 2018; and for Packing Group III, after 

October 1, 2020. You note that you based those dates on manufacturers’ capacity 

to build new tank cars, on fleet statistics, and on projected tank car originations. 

Considering the speed with which the crude oil and ethanol industry has grown in 

recent years, we believe the industry can achieve the proposed dates. Each delay 

in implementing a new design requirement allows the construction of more insufficiently protected tank cars that will both increase the immediate risks to communities and require costly modification later. We therefore urge swift adoption in the 

final rule with aggressive completion dates. 

Conclusion 

The NTSB strongly believes in a three-tiered approach to rail safety involving industry, emergency planning and response organizations, and the public. Railroads 

must pursue aggressive mitigation strategies, adopt operating restrictions, apply 

better braking technology, conduct risk analyses to select the safest routes, and ensure that track inspection is of the highest quality and proper frequency. Railroads, 

communities, and emergency responders must develop comprehensive response 

plans, ensure their preparedness for responding to worst-case releases in accidents, 

and expand public awareness. Shippers must use the most robust tank cars available to lessen the consequences of accidents involving hazardous materials. 

We urge you to promptly move these critical safety initiatives forward and to 

issue a final rule incorporating the proposed regulations without delay. We believe 

that the balanced actions offered by the NPRM, with the improvements suggested 

in this letter, would improve safety in transporting large volumes of flammable liquids by railroad as well as avoid overreliance on any single risk-reduction strategy. 

Transport Canada has proposed to amend Canada’s Transportation of Dangerous 

Goods regulations by requiring a new Class TC–140 tank car for rail transport of 

flammable materials such as petroleum crude oil and ethanol. The features of the 

proposed TC–140 car align closely with those of your proposed DOT–117 car under 

option 1. 

We applaud the close cooperation between the United States and Canada in proposing more robust regulations for rail tank cars that carry hazardous materials. 

The two countries share not only an integrated market but also the increased risks 

to their lands, structures, and populations posed by the expanded transport of danVerDate Nov 24 2008 14:09 Oct 23, 2015 Jkt 075679 PO 00000 Frm 00071 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\97249.TXT JACKIE
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gerous goods by rail. It is thus crucial for the Federal regulations of both countries 

to be harmonized to the greatest extent possible. 

We appreciate the opportunity to comment on the notice. 

Sincerely, 

CHRISTOPHER A. HART, 

Acting Chairman. 

Question 13. In that vein, what is missing from the current rulemaking that 

NTSB would support addressing to further improve safe crude-by-rail movements? 

Answer. In addition to the NTSB’s emphasis on the importance of implementing 

the ten safety recommendations listed above as rapidly as possible, we are also concerned about several aspects of the proposed regulations. We would like to see the 

following addressed: 

1. Requirements for notifying state agencies about rail shipments of hazardous 

materials through their territories, including ethanol. 

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

should be treated the same. 

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

4. Classification and characterization rules to include specific requirements for 

the sampling and testing needed to properly characterize hazardous materials 

destined for rail shipment. 

5. Speed restrictions based on a potential impact radius where individuals or environmentally sensitive areas could be harmed along flammable liquids rail 

corridors in lieu of large populated areas. 

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

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

metrics. 

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

9. Regulations that would prohibit existing legacy DOT–111 fleet to remain in 

flammable liquid service even if a train is not designated as a high hazard 

flammable train (HHFT), which is defined by the proposed regulation as a 

train containing 20 or more carloads of a Class 3 flammable liquid. 

The NTSB comment letter on the NPRM addresses each of these concerns in great 

detail for further reference. One of the key issues regarding enhanced standards for 

new and existing tank cars warrants particular elaboration. It is clear that regulators, industry, manufacturers, and owners disagree about the level of protection 

needed for tank cars that transport flammable materials. The lack of consensus is 

reflected in the NPRM’s three design options for tank cars built after October 1, 

2015, for use in transporting Class 3 flammable liquids. We are concerned that carriers selecting the new DOT–117 tank car with improved crashworthiness would select the option offering the least improvement in safety. The NTSB has asked 

PHMSA to reexamine its three-option proposal and only include the option that 

would achieve the highest level of safety and protection. 

Æ 

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