U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

99–914 PDF 2016

S. HRG. 114–244 

SURFACE TRANSPORTATION REAUTHORIZATION: 

PERFORMANCE, NOT PRESCRIPTION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON SURFACE TRANSPORTATION 

AND MERCHANT MARINE INFRASTRUCTURE, 

SAFETY AND SECURITY 

OF THE

COMMITTEE ON COMMERCE, 

SCIENCE, AND TRANSPORTATION 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

MARCH 24, 2015 

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

( 

(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 24, 2015 ............................................................................ 1 

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

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

Statement of Senator Blunt .................................................................................... 4 

Statement of Senator McCaskill ............................................................................. 4 

Statement of Senator Peters ................................................................................... 5 

Statement of Senator Wicker .................................................................................. 34 

Statement of Senator Blumenthal .......................................................................... 37 

Statement of Senator Klobuchar ............................................................................ 39 

WITNESSES

Peter M. Rogoff, Under Secretary for Policy, U.S. Department of Transportation ..................................................................................................................... 6 

Prepared statement .......................................................................................... 7 

Hon. David B. Nichols, P.E., Director, Missouri Department of Transportation, and Acting Chair, American Association of State Highway and 

Transportation Officials (AASHTO) Standing Committee on Performance 

Management ......................................................................................................... 13 

Prepared statement .......................................................................................... 14 

John D. Graham, Ph.D., Dean, School of Public and Environmental Affairs, 

Indiana University ............................................................................................... 21 

Prepared statement .......................................................................................... 22 

Dr. Peter Sweatman, Director, University of Michigan Transportation Research Institute .................................................................................................... 26 

Prepared statement .......................................................................................... 27 

APPENDIX

Response to written questions submitted to Hon. Peter M. Rogoff by: 

Hon. John Thune .............................................................................................. 45 

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

Response to written questions submitted by Hon. John Thune to: 

John D. Graham, Ph.D. .................................................................................... 48 

(1) 

SURFACE TRANSPORTATION 

REAUTHORIZATION: PERFORMANCE, 

NOT PRESCRIPTION 

TUESDAY, MARCH 24, 2015 

U.S. SENATE, 

SUBCOMMITTEE ON SURFACE TRANSPORTATION AND

MERCHANT MARINE INFRASTRUCTURE, SAFETY AND SECURITY,

COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION, Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:03 a.m. in room 

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

Present: Senators Fischer [presiding], Blunt, Wicker, Booker, 

McCaskill, Klobuchar, Blumenthal, and Peters. 

OPENING STATEMENT OF HON. DEB FISCHER, 

U.S. SENATOR FROM NEBRASKA 

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

I will now convene the Senate Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security 

for our fourth hearing, titled ‘‘Performance, Not Prescription.’’ 

This is the second hearing in a series on the reauthorization of 

our surface transportation programs. Today the Subcommittee is 

examining performance-based measures for our Nation’s surface 

transportation programs. A performance-based system will require 

regulators to set target objectives and leave compliance strategies 

to the discretion of the regulated entity. 

All too often, Federal regulators provide industry with prescriptive directions. Mandating specific designs or exact behaviors can 

potentially distort the ultimate goal of regulation. Not only do prescriptive regulatory mandates demand time and money from stakeholders, they require regulators to gain technical expertise that is 

often well outside of the given agency’s original mission. Moreover, 

prescriptive regulations embolden rent-seeking behavior. 

Performance-based regulations provide the opportunity for better 

collaboration between industry and the Federal Government. Regulators and stakeholders need to work together to achieve greater 

transparency and monitoring of progress toward performance targets. 

In January, Lance Fritz of Union Pacific Railroad testified before 

this subcommittee. He noted that, quote, ‘‘the point of a performance-based goal is to focus attention on the outcome, not the method.’’ He also explained to the Committee that there is little eviVerDate Nov 24 2008 11:39 Apr 27, 2016 Jkt 075679 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\DOCS\99914.TXT JACKIE
2 

dence that rigid design-based standards have a positive impact on 

railroad safety, but prescriptive regulations hamper innovation and 

carry a high cost for the Federal Railroad Administration and to 

railroad companies. 

Since 2008, the Government Accountability Office has recommended that surface transportation programs take a performance-based approach to achieve better outcomes and to allocate resources more effectively. In a January 2015 report, the GAO found 

that, while the Department of Transportation is progressing toward 

a performance-based approach, states and grantees face implementation challenges. These obstacles include inadequate amounts of 

data, impeded access to proprietary data, and insufficient staff resources for monitoring and evaluation. 

The safety and efficiency of our Nation’s highways and infrastructure could also benefit from a performance-based approach to 

regulations that offer flexibility and encourages innovation. 

For example, had the Federal Motor Carrier Safety Administration focused on an outcome-based approach to address its most recent iteration of truck-driver hours-of-service regulations, it is reasonable to assume that the regulations would have enhanced safety 

while not adversely affecting business operations. Instead, the 

overly prescriptive 34-hour restart provisions that were implemented in July 2013 mandate the exact time that drivers should 

sleep. This rule disrupted supply chains and led stakeholders to 

raise serious questions about the overall impact on safety of the 

regulation. 

At the same time, FMCSA is attempting to utilize a more datadriven approach with its Compliance, Safety, Accountability system 

scoring program. Although the CSA program is deeply flawed, implementing regulations that are informed by past performance and 

focus on future risk, it is a step in the right direction. 

Today we will review the progress that the Department of Transportation has made in implementing performance targets into our 

Nation’s surface transportation programs. I look forward to hearing 

about both the successes, the challenges, and the opportunities for 

encouraging performance-based standards as we continue to explore surface transportation reauthorization. 

I would now like to invite Senator Booker to offer opening remarks. 

STATEMENT OF HON. CORY BOOKER, 

U.S. SENATOR FROM NEW JERSEY 

Senator BOOKER. Thank you very much, Chairman Fischer, for 

having this important hearing and continuing our discussion of 

these important issues. 

I apologize at the top. I have another competing hearing right 

now, so I will be leaving in about 30 or 40 minutes. 

But I am very excited to be here, with a focus on a broad range 

of issues. One of the most important that we should be focused on 

is how our transportation system is actually performing. 

It is actually struggling right now. It is not the high-performing 

system that we would all like to see. Each day, commuters are 

stuck in traffic or packed onto train cars. In fact, people are losing 

the equivalent of 5 vacation days sitting in traffic each year. That 

3 

is unacceptable. And our country’s freight is stuck, too, at the 

ports, on our roads, and on the rails, costing our economy billions 

and billions of dollars. 

The way we are going to make things better is that they are 

going—if we don’t do anything, though, things are going to get 

much worse. And that is unacceptable. We have to do more. 

So if we want to turn this around and get the train back on its 

track—pun intended, metaphor intended—it is up to us to make 

some big changes in how we invest in our infrastructure. The bulk 

of our Federal funding, about $40 billion a year, goes to highways, 

while only $10 billion goes to transit. Even less, just short of $1.5 

billion, goes to passenger rail. And there is no surface transportation program dedicated to port infrastructure. 

Our Federal transportation funding overly prescribes how we 

fund the system rather than focusing on the performance of the 

system, which is obviously what we are here to talk about today. 

For example, in my state of New Jersey, all of our connectors 

into New York are at or near capacity whether you are traveling 

by car, on a bus, or on transit. That is why one of the most important projects is to build Amtrak’s Gateway Project, a tunnel connecting New York and New Jersey that will add desperately needed capacity, create jobs, expand our economy, and fuel our country’s most productive economic region. The Gateway Project will cost $15 billion. And where will the 

Federal contribution come from when we are not even spending, or 

investing, $2 billion a year in rail for the entire country? 

Other cities and states around the country are facing similar 

problems, from Chicago, to San Francisco, to Florida. That is why 

I am committed to trying to find new ways to invest in rail, ports, 

and transit systems. Last week, I introduced the Railroad Infrastructure Financing Improvement Act to unlock more capital and 

improve the way we finance all of our projects. 

And I think that is just the beginning of what we can do. We also 

need to be focused on how to improve the safety of our transportation system. Each year, more than 30,000 people die on our Nation’s highways. That is an unacceptable carnage. We need to find 

ways to make meaningful reductions in these numbers. 

The last transportation bill took steps to increase performance in 

both safety and investment through performance measures, which 

is a start, but only a small step toward what many experts believe 

we should be doing. 

I believe there are lessons we can learn from that process to better understand how we can improve the performance of our transportation system and safety programs. I look forward to hearing 

from our witnesses today about how we should be thinking about 

the performance of our transportation system and what lessons we 

can learn from other efforts to improve performance. 

Thank you, Chairman. 

Senator FISCHER. Thank you, Senator Booker. 

I would like to welcome our first panel of witnesses today: Mr. 

Peter Rogoff, the Under Secretary for Policy, with the United 

States Department of Transportation; Mr. David Nichols, Director, 

Missouri Department of Transportation, and Acting Chair of the 

American Association of State Highway and Transportation OffiVerDate Nov 24 2008 11:39 Apr 27, 2016 Jkt 075679 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\DOCS\99914.TXT JACKIE
4 

cials, or AASHTO, Standing Committee on Performance Management; Dr. John Graham, the Dean of the Indiana University School 

of Public and Environmental Affairs and the former Administrator, 

Office of Information and Regulatory Affairs, Executive Office of 

the President; and Dr. Peter Sweatman, Director, University of 

Michigan Transportation Research Institute. 

We do have two Senators from Missouri on this committee, and 

I would offer to Senator Blunt and then Senator McCaskill the opportunity to welcome their constituents here today. 

Senator Blunt? 

STATEMENT OF HON. ROY BLUNT, 

U.S. SENATOR FROM MISSOURI 

Senator BLUNT. Well, thank you, Chairman. I know that Senator 

McCaskill and I are both proud of Dave Nichols and the great leadership he has provided at the Missouri Department of Transportation. He went to work there 30 years ago and has held almost 

every leadership job in the department, 2 years now as Director, 

the 2 years before that as Chief Engineer. 

And in our state, if you look at a highway map of America or a 

railroad map of America or a river map of America, focus in on 

where those three maps all come together, you are basically looking 

at where Senator McCaskill and Dave Nichols and I live. And he 

is the first Director of the Missouri Department of Transportation 

to ever come up with a plan that brings all of that together, looking 

to the future. 

He is also the Chairman of the Standing Committee on Performance Management for the national group that works with highway 

and transportation issues. So he not only is recognized where we 

live but all over the country as someone who is a leader on these 

issues. 

He is retiring this year, and my request of him today is to still 

be available to us, both on this committee and in our state, with 

the great expertise and dedication you bring to these issues. 

So thank you, Chairman. 

Senator FISCHER. Thank you, Senator Blunt. 

Senator McCaskill? 

STATEMENT OF HON. CLAIRE MCCASKILL, 

U.S. SENATOR FROM MISSOURI 

Senator MCCASKILL. I, too, want to thank Dave Nichols for his 

service to our state. 

Many people don’t realize, but somebody had the brainy idea way 

back decades ago that the state would take over responsibility for 

maintenance of thousands of miles of county highways in our state, 

which means we have the seventh-largest highway system to maintain in the country. And I think we are either 46th or 47th in revenue. We have one of the lowest gas taxes in the country. The gas 

tax in Missouri hasn’t been raised in over 20 years. 

And so I know that he didn’t plan this, but he is going to be retiring at the apex of a crisis in our state. And I know he is busy 

working every day to try to convey to the people of Missouri that 

this problem is not one that is going to be solved in Washington. 

We do need to get our work done here, but we have a real problem 

5 

with Jefferson City with the amount of resources that are going toward this critical infrastructure that makes us the economic powerhouse we are in Missouri because of our transportation needs of 

both interstate and—we won’t get on barges today, but trains also. 

So thank you for being here, and thank you for your service. And 

thank you for being courageous as you lay out various alternatives 

for Missourians over the coming 2 years that we are going to have 

to face the reality of. Thank you very much. 

Thank you, Madam Chairman. 

Senator FISCHER. Thank you, Senator McCaskill. 

We also have a member on this committee from the state of 

Michigan. And so I would offer time to Senator Peters if he would 

like to welcome his constituent here today, Dr. Sweatman. 

STATEMENT OF HON. GARY PETERS, 

U.S. SENATOR FROM MICHIGAN 

Senator PETERS. Well, thank you, Senator Fischer. I really appreciate the opportunity to be here. 

And thank you for your very kind invitation to introduce a person from Michigan and someone who we have very high regard for 

because of his incredible work that he is doing leading the Michigan Transportation Research Institute at the University of Michigan. 

Dr. Sweatman, under his leadership, forming this institute, it is 

really going to be a leader in revolutionizing the mobility of people 

and freight. The institute will be working with industry, government, and academia. And the Michigan Transportation Institute 

will develop the foundation for a commercially viable ecosystem of 

connected and automated vehicles, work that could reduce vehicle 

fatalities and injuries as well as energy consumption and carbon 

emissions by as much as a factor of 10, which is really very, very 

exciting work. 

Dr. Sweatman has also been—and I know you continue to be, Dr. 

Sweatman—a strong advocate for preserving the 5.9 gigahertz 

band of spectrum that was set aside by the FCC for V2V and V2I 

technologies. And I would certainly agree with you, Dr. Sweatman, 

and appreciate your advocacy, that the FCC should not move forward in opening that band up for shared use until it can be proven 

it can be done without harmful interference to this incredible lifesaving technology that you are developing at the University of 

Michigan. 

So I look forward to hearing your testimony today, as I am sure 

everybody on the Committee, in regards to how connected, automated vehicles and the data collected in their testing and deployment will play a pivotal role in shaping the future performance 

management for our nation’s transportation system. 

So, Senator Fischer and Senator Booker, thank you for allowing 

me to be here, and I look forward to working with you as you shepherd this legislation through the Senate. Thank you. 

Senator FISCHER. Thank you, Senator Peters. 

With that, welcome to our panel. We will begin with your opening testimony. 

And, Mr. Rogoff, if you would begin, please. Thank you. 

6 

STATEMENT OF PETER M. ROGOFF, UNDER SECRETARY FOR 

POLICY, U.S. DEPARTMENT OF TRANSPORTATION 

Mr. ROGOFF. Well, thank you, Madam Chairman, Ranking Member Booker and members of the Subcommittee. I do appreciate the 

opportunity to appear before you today. 

Before I begin my formal remarks, I want to pass along the condolences of Secretary Foxx and the entire administration to the 

families of the victims of Germanwings Flight 4U–9525. Our condolences go out to all of the people of Spain and Germany. And, as 

always, the FAA stands ready to assist those very capable aviation 

authorities in any investigation where we can be helpful. 

Safety is priority number one at the Department of Transportation, so we commend you for taking the time to review the critical issues surrounding safety regulation enforcement and industry 

performance as you prepare to tackle the next surface transportation reauthorization bill. 

This year, like last year, the administration will be formally submitting several important safety provisions for your consideration 

as part of our GROW AMERICA Act. Our proposed bill also includes several proposals intended to help our transportation system 

perform better, specifically by streamlining the environmental review process to get shovels in the ground faster. 

And I would point out, Chairwoman Fischer, that many of the 

proposals that are in Title I of the GROW AMERICA Act are closely aligned with some of the streamlining proposals that Lance Fritz 

from UP did testify to you about earlier. 

In summary, we would very much welcome this subcommittee’s 

very careful consideration of our reform proposals, as many of them 

are in your jurisdiction. 

Back in 2012, the department formally adopted the use of riskbased safety management systems as a best practice for our regulatory and oversight posture across all of our safety agencies. And 

consistent with that policy, the department strongly supports the 

adoption and the use of performance-based standards when appropriate. In fact, we believe that actual safety performance of operators and grantees should inform the entire oversight posture of the 

department, including the development of regulations, enforcement 

efforts, and even in some instances the allocation of Federal grant 

funds. 

When approaching this tension between prescriptive and performance-based rules, it should be remembered that prescriptive 

rules have often served the American public quite well. 

Nowhere are our rules more prescriptive than in aviation. Between our regulations, guidance documents, and airworthiness directives, the FAA tells our airlines and plane manufacturers pretty 

much everything, including how they must clip a wire to a plane’s 

fuselage. 

This huge volume of prescriptive safety rules has produced the 

busiest, yet the safest, aviation system in the world—a regulatory 

framework that continues to be copied by developed nations around 

the globe. 

Similarly, in the Federal Railroad Administration, very prescriptive safety rules, in combination with stepped-up enforcement and 

7 

improved diligence by the nation’s railroads, just yielded in 2014 

the safest year on record when it comes to train accidents. 

Even so, we should not use the success of existing prescriptive 

rules as a rationale to slow the progress toward performance-based 

rules, especially new rules that might further enhance safety, lower 

costs, or be better tailored to each operator’s unique safety 

vulnerabilities. And, in fact, both the FAA and the FRA are building on their success by adopting performance-based approaches. 

Transitioning to more performance-based rules must be done 

with great care. They should be pursued when there is strong data 

indicating that safety will be enhanced both for travelers and, importantly, for transportation workers who are on the front lines 

every day. 

Such performance-based rules must also protect the public when 

it comes to low-frequency but high-consequence accidents. The current challenges facing the FRA are an excellent case in point. I earlier observed that 2014 was the safest year in railroad history, but, 

as this committee, knows well, we saw derailments in 2014 and 

2015 involving crude rail unit trains that must be addressed because of the threat that even one catastrophic accident can pose to 

a local community. 

A performance-based regulation, if poorly crafted, could declare 

victory based on aggregate safety performance while ignoring the 

rare but potentially disastrous impact of a high-consequence event. 

Performance-based rules can only be successful through the continuous collection and analysis of a great deal of performance data. 

That requires both the operator and the regulating agency to have 

the necessary resources to collect and analyze the data to monitor 

compliance with a performance-based standard. 

That, in turn, requires, as you pointed out, Senator Fischer, a 

heightened level of transparency and accountability on the part of 

the regulated companies for their day-to-day performance in meeting those performance standards. 

We at the DOT strongly believe that the best performance-based 

safety systems are those that make the actual safety performance 

of regulated parties readily available to their customers and the 

general public. This real-life performance data is also critical to our 

department’s ability to target limited oversight and enforcement resources on the operators and transportation corridors that pose the 

greatest risk. 

Our experience has been that not all operators or industries recognize or respect the need for such transparency. Absent a commitment to such transparency, performance-based regulations cannot 

work and this cannot be pursued. 

That concludes my statement. I apologize for going a few seconds 

over. And I stand ready to answer your questions. 

[The prepared statement of Mr. Rogoff follows:] 

PREPARED STATEMENT OF PETER M. ROGOFF, UNDER SECRETARY OF

TRANSPORTATION FOR POLICY, U.S. DEPARTMENT OF TRANSPORTATION

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

thank you for the opportunity to appear before you today. Safety is the Department 

of Transportation’s top priority, and I am happy to discuss with you the Department’s efforts to improve safety across our transportation networks. The Department is using objective, data-driven decision-making processes to adopt new perVerDate Nov 24 2008 11:39 Apr 27, 2016 Jkt 075679 PO 00000 Frm 00011 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\99914.TXT JACKIE
8 

formance-based standards and to heighten the transparency of safety performance 

of public and private transportation system operators. 

The Department is committed to the vision of eliminating fatalities on our Nation’s transportation system. Recently, the Secretary joined the National Strategy 

on Highway Safety Toward Zero Deaths, a vision for eliminating fatalities on our 

Nation’s roadways. This is a significant step toward eliminating traffic fatalities. It 

also echoes a goal of the Department’s Strategic Plan, to ‘‘work toward no fatalities 

across all modes of travel.’’ Improving safety means we must aggressively use all 

tools at our disposal—research into new safety systems and technologies, campaigns 

to educate the public, investments in infrastructure, targeted oversight and inspection activities, public transparency and accountability, and collaboration with our 

government partners to support strong laws and data-driven approaches to improve 

safety. 

Part of achieving this vision is adopting, to the greatest extent practical a performance-based approach for all new safety activities, including the development of 

new safety regulations, the enforcement of existing safety regulations, and other 

critical safety activities, such as public safety performance reporting. 

In the Department’s Strategic Plan for 2014–2018, Secretary Foxx established accountability around safety, including performance-based standards and reporting 

systems to improve the safety of the entire transportation system. In 2012, thenSecretary LaHood formally adopted the Safety Management Systems (SMS) methodology as the official policy of the Department with respect to addressing safety and 

risk management activities. Some agencies within the Department, namely the Federal Aviation Administration (FAA), have longer experience implementing SMS 

while others, specifically the Federal Transit Administration (FTA), just recently acquired safety regulatory authority and is moving aggressively to adopt a performance-based standards approach as it develops a comprehensive regulatory framework. 

Using SMS as a framework, our priority is to use our safety programs and regulations as effectively as possible and direct Federal resources to address the most serious safety risks. Performance-based standards and the use of safety tools, such as 

improved data collection, hold significant promise to reduce crashes, fatalities and 

injuries for users of the transportation system. As noted in the recent Government 

Accountability Office (GAO) report on performance measures, the Department has 

initiated numerous performance-based approaches across many agencies and together with many of our grantees. 

However, the shift to a performance-based approach can be challenging. It can be 

complicated to design, may require more and better data and risk models than currently available, and may require different skills of operators and regulators compared to traditional prescriptive (e.g., design) standards. Overseeing a performancebased approach can be more complex than a more prescriptive one. The determination of ‘‘adequacy’’ of compliance with a non-prescriptive standard can be considerably more challenging than the simple ‘‘black and white’’ compliance of a prescriptive (e.g., design) standard. Additionally, there may need to be a greater willingness 

by the operator to provide data not otherwise available to the regulator. Finally, 

performance-based regulations will function poorly when implemented in the wrong 

way, or under the wrong conditions. 

Additionally, some modal administrations with a long history of oversight will 

have to balance their performance-based evolution while carefully examining existing practices for opportunities to move to performance-based approaches without 

compromising safety or disrupting current approaches that industry and the Department both agree are working effectively to promote safety outcomes. Nonetheless, 

the Department is committed to creating a performance based culture across our 

regulatory programs. 

Ultimately it is the operator’s responsibility to operate safely. However, given the 

vast numbers of operators of varying levels of sophistication, the Department has 

the responsibility to communicate, educate, develop new knowledge and technical 

solutions, and drive risks from any operation to as low as is reasonably achievable. 

MAP–21 Performance Measures 

The Department has made solid progress addressing the MAP–21 requirements 

intended to make the surface transportation programs more performance-oriented. 

For example, the Federal Highway Administration (FHWA) is developing a series 

of rules that will continue to transform the Federal Highway Program to a performance and outcome based program by increasing coordination, linking investments to 

outcomes, and improving decision-making and the efficacy and transparency of national reporting. We expect that the safety performance measure rule in particular, 

when completed, will provide us with a clearer picture of complex crash and roadVerDate Nov 24 2008 11:39 Apr 27, 2016 Jkt 075679 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\99914.TXT JACKIE
9 

way characteristic patterns, and better fatality, serious injury and roadway data, 

thereby allowing policymakers at all levels of government to make better decisions 

about how to invest limited resources for maximum safety benefit as well as making 

them more accountable for their decisions. 

As required under MAP–21, states that do not meet or make significant progress 

towards meeting their established safety targets will be held accountable. The 

FHWA published a Notice of Proposed Rulemaking (NPRM) last year that proposes 

to establish measures for State departments of transportation to use to carry out 

the Highway Safety Improvement Program (HSIP) and to assess serious injuries 

and fatalities per vehicle mile traveled, and the total number of serious injuries and 

fatalities. States failing to make significant progress would be required to use a 

Safety Implementation Plan to identify necessary steps to improve their safety performance and use HSIP dollars to address these safety concerns. 

MAP–21 also required performance measures for one of the Federal Motor Carrier 

Safety Administration’s (FMCSA) top safety rulemakings that will mandate the use 

of Electronic Logging Devices (ELDs) to ensure greater compliance with the hours 

of service rules for certain truck and bus drivers. As part of this rulemaking, 

FMCSA is proposing new technical specifications for ELDs and the Agency has focused on a performance-based approach to the greatest extent practicable. For example, the draft rule would allow for a variety of options for ELDs from systems 

that are hard-wired to the vehicle to use of smart-phones and tablets which communicate with the truck or bus via wireless communications. The draft rule also proposed options for presenting the driver’s record of duty status information to roadside enforcement officials, including use of the display screen, printouts, e-mail, or 

ELD-vendor hosted websites. That rulemaking should be completed later this year. 

MAP–21 also established program goals and mandated that FMCSA evaluate 

states’ progress in meeting these goals for its primary safety grant program, the 

Motor Carrier Safety Assistance Program (MCSAP). MCSAP provides financial assistance to states to reduce the number and severity of crashes and hazardous materials incidents involving commercial motor vehicles (CMVs). To receive MCSAP 

funding, states must implement performance-based activities, including deployment 

of technology to enhance the efficiency and effectiveness of CMV safety programs. 

As a condition of receiving MCSAP assistance, states must develop and submit performance-based Commercial Vehicle Safety Plans (CVSPs). These CVSPs provide 

flexibility that allows each state to focus on the most serious problems unique to 

their state and allow the state to maximize limited resources while focusing on safety outcomes rather than outputs. 

As required by statute, FTA is implementing performance measures to make optimal use of its relatively new safety oversight and standards setting authority. In 

February 2015, FTA published a NPRM to strengthen the authority of State Safety 

Oversight Agencies (SSO). The proposed SSO rule reflects the flexible, scalable principles of Safety Management Systems that focus on organization-wide safety policy, 

proactive hazard identification, and risk informed decision-making as part of risk 

management, safety assurance, and safety promotion (safety training and communications). 

As FTA and the transit industry move towards a performance-based approach, 

they are working to make sure previous safety efforts are not discarded, and new 

standards are implemented in a careful and deliberate manner to ensure safety. The 

rulemaking process to advance the FTA’s safety mission is progressing steadily and 

FTA plans to issue four additional NPRMs for safety plans and programs in the 

coming year. 

GROW AMERICA Proposals 

The Moving Ahead for Progress in the 21st Century (MAP–21; Pub. L. 112–141) 

took important first steps in advancing the Department’s safety agenda. It established a streamlined and performance-based surface transportation safety program. 

The Administration’s surface transportation reauthorization proposal, the Generating Renewal, Opportunity, and Work with Accelerated Mobility, Efficiency, and 

Rebuilding of Infrastructure and Communities throughout America Act (GROW 

AMERICA Act) seeks to build on the successes of MAP–21 with even stronger safety 

provisions that will include measures to make our surface safety regimes even more 

performance-based and data-driven. 

As articulated in the budget, the GROW AMERICA Act nearly triples the budget 

of the Office of Defects Investigation (ODI) in the National Highway Traffic Safety 

(NHTSA) to enhance our ability to monitor data, find defects sooner, and strengthen 

NHTSA’s ability to conduct investigations of vehicles with suspected defects. The 

proposal establishes harsher penalties for manufacturers that refuse to address defective and dangerous vehicles and equipment. 

10 

The GROW AMERICA Act also strengthens FHWA’s Highway Safety Improvement Program (HSIP) to enable engineers to identify infrastructure and operational 

hazards to prevent the next crash. It bolsters the Department’s safety authority by 

increasing civil and criminal penalties for FMCSA, NHTSA, and FTA and establishes emergency authority for FTA to restrict or prohibit unsafe transit practices. 

Further, this proposal provides more than $3 billion over six years through the Federal Railroad Administration (FRA) to assist with commuter railroad and Amtrak 

route implementation of performance-based Positive Train Control systems designed 

to prevent certain high-consequence rail incidents. 

The proposal provides more than $10 billion over six years for NHTSA and the 

Federal Motor Carrier Safety Administration (FMCSA) to improve safety for all 

users of our highways and roads. The GROW AMERICA Act would also streamline 

our Federal truck-and bus-safety grant programs to make them even more performance-oriented while providing greater flexibility for States to address regional and 

evolving truck-and bus-safety issues. This means that our State partners will be 

able to use their Motor Carrier Safety Assistance Program funding for motor carrier 

safety in order to address local truck and bus issues while meeting national safety 

priorities. By consolidating our grant programs, our State partners will spend less 

time on administrative grant activities and more time on boots on the ground roadside safety. The bill would also enhance safety through stricter standards for vehicle 

operators and more rigorous inspections. The proposal also includes a $5.1 billion 

increase in 2016 to address public transit’s maintenance backlog to reduce bus and 

fixed rail system breakdowns as well as increase overall safety and reliability. 

In addition, GROW AMERICA proposes to more than double available funding for 

the highly competitive Transportation Investment Generating Economic Recovery 

(TIGER) program, increasing available funding to $1.25 billion annually. Meritbased selection of transportation projects using detailed economic analysis of project 

costs and benefits, coupled with meaningful performance measurement of all 

projects further strengthens the Department’s performance-based focus and emphasis on measurable outcomes for all grantees. The TIGER program has made significant investments in safety related projects. For example, in the last round of TIGER 

funding, New York City (NYC) received a $25 million grant to promote NYC DOT’s 

Vision Zero approach, working to reduce transportation-related injuries and fatalities. The Administration hopes that this Committee will give careful consideration 

to the provisions included in the GROW AMERICA Act that will improve safety for 

the traveling public and strengthen our efforts in expanding performance-based approaches. 

Data-Driven Processes and Safety Management Systems 

A systematic use of data has facilitated FRA’s performance-based approach to system safety and risk reduction rulemaking efforts, as mandated by the Rail Safety 

Improvement Act of 2008 (P.L. 110–432). Last month, FRA published a rule proposing to require each Class I freight railroad and each other freight railroad that 

FRA determines has inadequate safety performance to develop and implement FRA 

approved risk reduction programs (RRP). RRP is a comprehensive, system-oriented 

approach to safety that determines an operation’s level of risk by identifying and 

analyzing applicable hazards and involves developing plans to mitigate, if not eliminate, that risk. In September 2012, FRA published a companion rulemaking proposing to require commuter and intercity passenger railroads to develop and implement system safety programs; a final rule is scheduled to be published this summer. 

FRA intends these broader, system safety and risk reduction efforts to dovetail 

with other initiatives and make regulations more performance-based. Notably, in 

September 2009, FRA tasked its Railroad Safety Advisory Committee (RSAC) to 

produce a set of technical performance criteria and procedures to evaluate passenger 

rail equipment built to alternative designs, to ensure that trainsets based on international platforms can be built for and operated safely in the United States. FRA 

also tasked the RSAC to develop formal recommendations for addressing industry 

waiver requests for passenger equipment crashworthiness standards and alternative 

crashworthiness performance criteria into FRA’s regulations. FRA will use the 

RSAC recommendations to inform a NPRM under development to seek public comment on allowing the industry greater flexibility to meet crashworthiness performance requirements. Similarly, FRA’s March 2013 final rule on vehicle/track interaction safety promotes the use of performance-based standards to ensure the safety 

of the vehicle and track system, based on results of computer simulations of vehicle 

and track dynamics, consideration of international practices, and thorough reviews 

of qualification and revenue service test data. 

11 

Performance-Based Versus Design-Based Standards for Equipage 

While the Department is committed to developing a performance-based culture 

across its modes, there are instances where it is more appropriate to adopt designed-based or a combination of design-and performance-based standards. When 

appropriate, moving from design standards to performance-based standards does require careful consideration to ensure the new standards actually improve safety and 

do not unintentionally introduce unknown risks that could compromise safety. Ensuring the safety of the traveling public and transportation employees must be the 

overriding factor of all regulatory decisions. 

For example, some dashboard warning lamps and hazard-related systems in vehicles are more appropriately design-based to ensure uniformity for driver understanding when switching between vehicles. NHTSA’s standards sometimes mandate 

installation of certain systems or components, including headlamps, seat belts, air 

bags, rearview cameras, and electronic stability control, and at the same time include performance standards for those systems or components. Federal Motor Vehicle Safety Standard No. 208, ‘‘Occupant Crash Protection,’’ is an example of a performance based standard. It requires that the vehicle restraint systems, including 

the air bags, provide protection in a crash as measured by instrument readings on 

test dummies during prescribed crash tests. Of course, the standard also requires 

installation of certain devices, including some air bags. However, it does not dictate 

design and manufacturing considerations, such as the deployment thresholds, the 

air bag size, or color of wiring or connectors associated with air bags. 

Finally, with regard to packaging of hazardous materials, the Pipeline and Hazardous Materials Safety Administration (PHMSA) uses performance-based packaging standards for certain bulk and non-bulk packaging. These standards are 

based on United Nations (UN) Recommendations in which a packaging manufacturer must test a representative design type in accordance with standards stipulated in the Hazardous Materials Regulations. Once a design type has successfully 

passed a test, a manufacturer must mark every package that is represented as manufactured to meet that UN standard with the corresponding marking indicating the 

level of testing endured. These tests include drop tests, leak tests, a hydrostatic test, 

and a stacking test as well as other relevant tests based on the type of packaging. 

The benefits of this performance-oriented approach include industry’s ability to 

apply innovative technologies (i.e., packaging) or non-traditional methods to meet 

the stated performance-based criteria without waiting for regulators to modify prescriptive (e.g., design-based) requirements to explicitly permit use of a new technology. 

Performance in Safety Enforcement 

In addition to utilizing performance standards in developing regulations, the Department utilizes performance metrics, to the greatest extent possible, to guide our 

safety oversight activities. 

PHMSA’s Integrity Management (IM) program is based on the fundamental 

premise that companies should be responsible for managing their own risks, with 

regulatory agency oversight of their processes, systems and performance. There is 

evidence that the IM program has been effective, based on the thousands of pipeline 

anomalies and defects that have been found and fixed as a result of the program— 

commonly viewed as ‘‘accidents avoided’’—and to improvements in technology that 

have been spurred by IM. Performance-based rules provide latitude to private sector 

operators to customize their compliance programs. This is reflective of the fact that 

operators manage pipelines created of differing materials manufactured over a very 

long period of time (with vintage-specific issues) in widely varying environments 

(e.g., differing soil types, weather) and near or remote from people and sensitive environments. 

Further, PHMSA maintains a data portal of pipeline incident reports that provides the time and location of the incident(s), number of any injuries and fatalities; 

commodity spilled/gas released, causes of failure, and evacuation procedures. The reports are used for identifying long-and short-term trends at the national, state and 

operator-specific levels. The frequency, causes, and consequences of the incidents 

provide insight into the safety metrics currently used by PHMSA, state partners, 

and other pipeline safety stakeholders, including the pipeline industry and general 

public. PHMSA also uses the data for inspection planning and risk assessment. 

The Department is also focused on making the information it collects and makes 

publicly available even more useful. For instance, PHMSA maintains a database 

with information collected when there are incidents involving hazardous materials, 

such as crude oil spills during rail transport. While the database contains valuable 

information about incidents, PHMSA has recently identified limitations to the information that impede its utility. For instance, sometimes the incident reports filed by 

12 

industry do not contain the full extent of the property damage, cleanup, and remediation costs of an incident. PHMSA is considering ways to address these and other 

limitations to improve the utility and transparency of this database. 

FMCSA’s primary large truck and bus enforcement program, Compliance, Safety 

Accountability (CSA), uses a Safety Measurement System that compiles motor carrier safety data through roadside inspections, investigations, and reportable crashes 

to measure a carrier’s performance and prioritize carriers for follow up interventions. This is critically important as FMCSA has the resources to inspect less than 

two percent of all active motor carriers each year, so the Agency must target its resources effectively. FMCSA has sufficient performance data to make an intervention 

prioritization assessment for nearly 200,000 of the approximately 525,000 active 

motor carriers for which it has safety oversight responsibilities. More importantly, 

analysis reveals that those same 200,000 motor carriers are involved in approximately 93 percent of the crashes reported by our State partners. 

FMCSA’s deployment of SMS has significantly raised safety awareness throughout the motor carrier industry. In calendar year 2011, the public website that provides a motor carrier’s status in the SMS prioritization system hosted nearly 30 million user sessions, up from 4 million user sessions under the prior public SafeStat 

system in calendar year 2010. FMCSA continues to receive feedback that this increased awareness and transparency has raised the status of safety within corporate 

cultures and we are seeing this increased awareness in improved safety compliance 

and performance data. For example, violations per roadside inspection were down 

by 8 percent in 2011, and driver violations per inspection were down by 12 percent. 

This is the most dramatic improvement in violation rates in the last 10 years. 

Additionally, the FRA rail-safety oversight framework relies on inspections to ensure railroads comply with Federal safety regulations. FRA inspects railroad infrastructure and operations, identifies safety defects, and may, if warranted, cite the 

railroads for violations of Federal safety regulations. FRA has developed and uses 

a risk-based approach to direct these inspection efforts. Like FMCSA, FRA inspectors are able to inspect just a small number of rail operations annually, and the 

agency estimates it inspects less than 1 percent of the railroad activities covered in 

regulation. As a result, railroads have the primary responsibility for safety of the 

railroad system. FRA has two tools to help direct its inspection efforts—the National 

Inspection Plan (NIP) and the Staffing Allocation Model (SAM). The NIP process 

uses past accident and other data to target FRA’s inspection activities, and the SAM 

estimates the best allocation of the different types of inspectors across FRA regions 

in order to minimize damage and casualties from rail accidents. The FRA has also 

implemented a risk based inspection program for tank car facility inspections. Risk 

scores are assigned to tank car facilities based on performance history and type of 

tank car serviced. 

Further, FRA requires rail operators to provide monthly reports on all accidents 

and incidents resulting in injury or death to an individual or damage to equipment 

or a roadbed arising from the carrier’s operation. This information is made available 

online and includes overall safety trends and searchable queries that provide specific information on exact location of incident, casualties, damage, cause of incident, 

and other operational data of the rail environment. 

FTA maintains a National Transit Database for the public that contains summary 

information on the number of safety incidents such as collisions, fires, derailments, 

as well as security incidents that have occurred in a fixed number of categories. In 

addition, to ensure proper accountability, a transit agency’s chief executive officer 

must also certify on an annual basis the accuracy of the safety and security data 

previously reported by the transit agency. 

In nearly all of these examples, publicly available safety performance data is key 

to embracing a culture of safety accountability, providing transparent oversight and 

regulation, and ensuring that collective efforts are properly aimed at real risks 

based on actual data. PHMSA, FMCSA, FRA, and FTA provide specific safety data 

on publicly available websites. 

Together, these efforts are designed to ensure that safety management and regulatory decisions are objective, data-driven and transparent to the public, decisionmakers, field personnel, and executive management alike. This transparency and 

accountability serves as a cornerstone for achieving tangible and measurable safety 

improvements across many different modes of transportation. 

Conclusion 

The Department has made great strides to implement data-driven decision-making and performance-based standards where possible, while recognizing that design 

standards are still useful in certain circumstances. The Department is committed 

to continuing its efforts to facilitate industry technological innovations while still exVerDate Nov 24 2008 11:39 Apr 27, 2016 Jkt 075679 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\99914.TXT JACKIE
13 

ercising proper safety oversight through thoughtful development and implementation of performance-based standards, and data-driven decision-making to reduce 

risk, maximize outcomes, increase system efficiency, and above all, maintain the absolute highest levels of safety for our transportation system. 

Madame Chairman, Ranking Member, Members of the Subcommittee, thank you 

again for the opportunity to testify before you today. I stand ready to answer your 

questions. 

Senator FISCHER. Thank you, sir. 

Next, Mr. Nichols. Welcome. 

STATEMENT OF HON. DAVID B. NICHOLS, P.E., DIRECTOR, 

MISSOURI DEPARTMENT OF TRANSPORTATION, AND ACTING 

CHAIR, AMERICAN ASSOCIATION OF STATE HIGHWAY 

AND TRANSPORTATION OFFICIALS (AASHTO) 

STANDING COMMITTEE ON PERFORMANCE MANAGEMENT 

Mr. NICHOLS. Thank you, Madam Chairman Fischer, Ranking 

Member Booker, members of the Subcommittee. Thank you for this 

opportunity to provide input on the implementation of transportation performance management programs within the state departments of transportation. 

Today it is my honor to testify on behalf of the Missouri Department of Transportation and AASHTO. My main message this 

morning is to share with you my state’s experience, along with that 

of other state DOTs, in implementing transportation performance 

management programs. Performance management, if implemented 

in a logical and thoughtful way, can be a powerful tool in managing 

the performance of the entire transportation system. 

This is not the first time State DOTs have implemented performance management concepts. The 12 national-level performance 

measures required as a part of MAP–21 are just the top layer of 

a much more robust set of performance measures state DOTs use 

on a regular basis to plan, program, and operate their transportation networks. 

All states have implemented some aspect of performance management. Colorado, North Carolina, Utah, Minnesota, and Maryland have created programs to manage their physical assets and 

focus on the principles of transportation asset management as opposed to a worst-first approach. 

Many other states have well-known performance management 

programs that go far beyond the management of just physical assets. For example, Missouri’s Tracker is a tool to assess how well 

MoDOT delivers services and products to our customers. The 

Tracker’s seven tangible results, which are the outcomes the public 

expects, guides us in everyday decisionmaking. To increase accountability, each of the seven tangible results is assigned to a specific senior leader, who is charged with meeting the department’s 

goals and obtaining the associated metrics. 

The Tracker tool’s flexible nature has allowed MoDOT to establish a performance-based culture and evolve with changes in both 

leadership and policy. Through flexibility and accountability, the 

Tracker ensures efficient and effective decisionmaking. 

Safety is a good example. Since implementing Tracker 10 years 

ago, the number of fatalities on Missouri’s roadways has dropped 

from 1,257 in 2005 to 766 in 2014. 

14 

You may be aware that this week is National Work Zone Awareness Week, and in Missouri work zone safety is at the center of our 

culture. Staying safe in work zones is a partnership among 

MoDOT, our contractors, law enforcement, and the driving public. 

Our Tracker follows the number of fatalities, injuries, and crashes in work zones every quarter. By placing the focus on reducing 

those numbers, we can take actions that make work zones safer for 

everyone. Over 10 years, we have seen the number of work zone 

crashes drop from 4,492 in year 2003 to 1,509 in 2013. 

MoDOT has used this performance management system to create 

a results-focused culture among its employees and improve satisfaction and credibility among its customers. Performance goals and 

results may change over time, but I am confident our performance 

management system will remain tightly woven in MoDOT’s organizational fabric. 

The success of Tracker and performance management in general 

is not without its challenges, however. 

The first challenge is the cost to implement. It takes money and 

resources to collect, store, manage, and analyze the necessary data. 

These are funds that cannot be spent on projects and programs to 

improve safety outcomes. However, the data will be a valuable tool 

to improve safety. 

The second challenge we meet is the need to maintain certain 

minimum condition levels. State DOTs are concerned with the minimum condition requirements that were made without knowing 

what the full availability of funding is. AASHTO estimates that 

some State DOTs will not be able to meet certain minimum condition standards even if available funding were spent on improving 

bridge and pavement conditions. 

The third challenge we face is target-setting. Funding levels 

vary, as do environmental conditions, population growth trends, 

and legislative and gubernatorial mandates and other priorities. 

State DOTs and NPOs will be challenged to establish appropriate 

targets that take into account their unique situations. 

For the last decade, many State DOTs have developed and implemented comprehensive and robust performance management systems to balance investment decisions against resource limitations 

for a wide variety of areas, from safety to asset condition to the 

performance of the entire transportation systems. State DOTs are 

concerned with all these performance areas and must balance the 

funding of programs and projects across areas while meeting public 

expectations during a time of financial uncertainty. 

Madam Chairman, thank you so much, again, for the opportunity 

to testify today, and I would be happy to respond to any questions 

that you may have. 

[The prepared statement of Mr. Nichols follows:] 

PREPARED STATEMENT OF HON. DAVID B. NICHOLS, P.E., DIRECTOR, MISSOURI

DEPARTMENT OF TRANSPORTATION AND ACTING CHAIR, AMERICAN ASSOCIATION OF

STATE HIGHWAY AND TRANSPORTATION OFFICIALS (AASHTO) STANDING

COMMITTEE ON PERFORMANCE MANAGEMENT

Introduction 

Chairwoman Fischer, Ranking Member Booker, and Members of the Subcommittee, thank you for the opportunity to provide input on the implementation 

of transportation performance management programs within the State Departments 

15 

of Transportation. My name is David Nichols, and I serve as the Director of the Missouri Department of Transportation (MoDOT) and the Acting Chair of the American 

Association of State Highway and Transportation Officials’ (AASHTO) Standing 

Committee on Performance Management. Today it is my honor to testify on behalf 

of the State of Missouri and AASHTO, which represents the State departments of 

transportation (State DOTs) of all 50 States, Washington, D.C., and Puerto Rico. 

I have been honored to serve as Director of the Missouri Department of Transportation for the past two years. I have spent the past 31 years in public service at 

MoDOT, starting in 1984, and have served in a variety of leadership roles, including 

District Engineer, Director of Program Delivery, and Chief Engineer, prior to becoming Director. 

Three of my passions have been: safety on our roadways, for motorists, passengers, pedestrians and highway workers; innovation in everything we do in order 

to give our customers the best value for every dollar they invest in transportation; 

and diversity within our workforce, both for the MoDOT team and our contracting 

partners. 

Missouri has been a leader among the State DOTs in striving for better outcomes 

through implementation of transportation performance management principles. And 

in my role as Acting Chair of AASHTO’s Standing Committee on Performance Management, I lead the Association’s work in identifying and implementing best practices and providing input and guidance on a number of Federal regulations that are 

currently being developed by the United States Department of Transportation 

(USDOT) in response to the important recent changes made in the Moving Ahead 

for Progress in the 21st Century Act (MAP–21) requirements. 

My main message this morning is to share with you the experience of the State 

DOTs, including my home state of Missouri DOT, in the implementation of transportation performance management programs. Performance management, if implemented in a logical and thoughtful way, can be a very powerful tool to MoDOT and 

our peer agencies in managing the performance of the entire transportation system. 

However, I must also note that performance management is not a panacea and cannot be expected to improve the condition of our transportation assets or performance 

of the transportation system in the absence of a robust transportation funding platform. It is critical that everyone works together to establish a long-term, sustainable 

transportation funding framework to truly see the benefits of transportation performance management. Without this funding base, all we can do as State DOT directors is to merely manage the gradual degradation of our national and regional 

transportation system that underpins our economy and quality of life. 

My testimony today will emphasize three main points: 

1. State DOTs are already implementing performance management principles; 

2. Experience of Missouri DOT in implementing performance management; and 

3. Lessons to offer in implementing national-level performance management requirements. 

State DOTs Are Already Implementing Performance Management 

Principles 

It is important to have a basic understanding of the concepts involved in performance management. Performance management is an iterative process that requires 

good data and feedback loops that inform the overall decision-making process. Most 

importantly, it takes time for performance management to show results. At the 

broadest level, performance management is about linking agency goals and objectives with resources and results as shown in Figure 1. 

16 

In the surface transportation context, state DOTs first establish goals and objectives. Goal areas may be developed within the agency or be directed to the agency 

from the governor, for example. Many State DOTs are now focused on linking the 

transportation system to improve economic development and growth. Other goal 

areas may focus on more traditional emphasis areas such as safety, operations, system performance and agency performance in areas such as project delivery. 

Second, agencies establish performance measures that are used for both day-today and strategic management. Broader performance management measures might 

include travel time and delay, fatalities and serious injuries as well as specific 

measures of agency performance such as on-time and on-budget project delivery. 

Third, an agency will make decisions on how to allocate resources within and 

across different types of investments based on an analysis of how different allocations will impact achievement of policy objectives and performance goals. For some 

goals, this may include forecasting the likely performance impacts of different strategies and setting performance targets. For example, a tradeoff analysis of reducing 

congestion may involve finding the right mix of capital expansion and operations 

strategies given the constrained funding resources available. 

Fourth, state DOTs must allocate the limited funding resources they have to the 

projects that will improve the overall performance of the transportation system. The 

allocation of resources is not about identifying projects that are ‘‘wanted’’ versus 

‘‘needed’’ but rather which projects must be funded now versus those projects that 

can be delayed until additional funding is made available. State DOTs have many 

different tools for assisting decision makers in conducting resource allocation from 

sophisticated quantitative econometric models to more qualitative assessments conducted by staff. 

Finally, once the projects have been funded and built, the actual performance impact of programs and projects are tracked over time and provide the basis for evaluating the most effective strategies to achieve desired goals. Recognizing realistic 

timeframes for observing performance results and understanding that these timeframes will vary by performance area is important. For example, for many key perVerDate Nov 24 2008 11:39 Apr 27, 2016 Jkt 075679 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\99914.TXT JACKIE

324NICHO1.eps
17 

formance measures related to economic development, pavement condition, and safety, changes in performance will only be observable over a number of years. On the 

other hand, some aspects of system operations or agency performance changes can 

be tracked on a monthly or even daily basis. 

One of MAP–21’s key legacies is that it established a set of new national policy 

goals that aims to both focus and prioritize the Federal-aid Highway Program investments. While this is the first time that State DOTs, Metropolitan Planning Organizations (MPOs) and transit agencies are required to track, measure and report 

on transportation performance using a consistent, national framework, it is certainly not the first time that State DOTs have implemented performance management concepts. All states have implemented some aspect of transportation asset 

management, a subset of performance management. And, many State DOTs have 

implemented comprehensive and robust performance management systems to balance investment decisions against the varying resources and approaches provided 

by local, state and Federal Government. 

States such as Colorado, North Carolina, Utah, Minnesota, and Maryland have 

created programs to manage their physical assets and focus on the principles of 

transportation asset management as opposed to a ‘‘worst-first’’ approach. Other 

states such as Missouri, Washington State, and Virginia have well-known performance management programs that go well beyond the management of physical assets. 

Missouri’s Tracker is a tool to assess how well MoDOT delivers services and products to their customers (http://www.modot.org/about/Tracker.htm). Washington 

State’s Gray Notebook is the Washington State DOT’s quarterly accountability report that has been in existence since 2001 (http://www.wsdot.wa.gov/Accountability/). Virginia DOT helped to pioneer the transportation dashboard concept 

(http://dashboard.virginiadot.org/). 

What MAP–21 requires of the State DOTs and MPOs is to report on twelve national-level performance measures that U.S. DOT can use to tell a comprehensive 

story about the status of the Nation’s transportation infrastructure. Often, these national-level measures are referred to as a thin layer of measures that sit on top of 

a much more robust set of performance measures that State DOTs use on a regular 

basis to plan, program, and operate their transportation networks. 

It’s true that there have been, and will continue to be, many challenges to effectively implementing MAP–21. But I can also assure you that State DOTs are never 

one to shy away from a challenge. Over the past decade the States DOTs—through 

the National Cooperative Highway Research Program of the Transportation Research Board—have proposed, supported and actively engaged in applied research 

to advance the use of performance measurement to address complex management 

challenges and to enhance organizational and program effectiveness. This research 

has produced a series of comparative performance measures reports and compiled 

substantial know-how on successful data-and system-management techniques for 

performance measurement. More recently, the State DOTs, along with their MPO 

and transit partners, have been engaged with USDOT’s Federal Highway Administration (FHWA) and Federal Transit Administration (FTA) in discussing, promoting 

and testing performance measures and performance-based planning and programming. 

Experience of Missouri DOT in Implementing Performance Management 

State DOTs have significant experience in implementing performance management. I would argue that Missouri is one of the leaders in this area. While Missouri 

will work with the USDOT in implementing MAP–21 performance management requirements, MAP–21 is focused primarily on national goals, national level measures, and the Federal investment. As the director of the Missouri DOT, I must also 

contend with a number of state goal areas and funding sources. I’d like to share 

with you some details about Missouri’s efforts and how we document our performance. 

The Need for Tracker, MoDOT’s Performance Management Tool 

In the late 1990s and early 2000s, the Missouri Department of Transportation 

began to consider performance management and data-driven decision making, but 

struggled with how to start. In 2004, the department finally set itself on a path to 

start collecting data and publishing measurements on which we could continuously 

build. 

After establishing the agency’s fundamental values and collecting the necessary 

data to develop performance measures, MoDOT published the first Tracker in January 2005. This publicly available report documents how MoDOT meets its goals and 

fulfills its mission and tangible results on a quarterly basis. 

18 

Focused on Customer Expectations 

MoDOT originally built the Tracker around 18 tangible results which have since 

been refined to the current seven. These are the outcomes the public expects, and 

they guide us in everyday decision making. To increase accountability, each of the 

seven tangible results is assigned to a specific senior leader who is charged with 

meeting the department’s goals and obtaining the various associated metrics. 

The seven tangible results are: 

1. Keep customers and ourselves safe 

2. Keep roads and bridges in good condition 

3. Provide outstanding customer service 

4. Deliver transportation solutions of great value 

5. Operate a reliable and convenient transportation system 

6. Use resources wisely 

7. Advance economic development 

Accountability for Results 

MoDOT uses a range of performance measures to focus and encourage progress 

in achieving the tangible results. Every performance measure in the Tracker corresponds to a specific tangible result. Just as each tangible result is assigned to one 

senior leader, every underlying performance measure is assigned to a single staff 

member. The ‘‘measurement driver’’ is the lead staff person responsible for collecting 

data and meeting the specific measurement’s objective. 

This model ensures accountability both internally and with the public. Each staff 

member must report on his/her performance measure to me, senior leadership and 

various statewide staff at quarterly Tracker meetings. The quarterly Tracker allows 

MoDOT to continually monitor progress and provides transparent information to the 

public. 

Multiple Measures Drive Performance Areas 

There are multiple performance metrics associated with each tangible result, in 

order to address it comprehensively. For example, ‘‘Keep Customers and Ourselves 

Safe’’ includes metrics on fatality and injury reports as well as lost work days and 

general liability claims and costs. All metrics are collected quarterly, semi-annually, 

or annually through various data systems and other reporting means. The Tracker 

details how measurements are calculated and analyzed. The Tracker report is highly 

graphical, using charts to present each metric in a simple format. The charts frequently include benchmarks to show how MoDOT compares to other states or private corporations measuring similar elements. 

Driving Results for Any Challenge 

The Tracker tool’s flexible nature has allowed MoDOT to establish a performancebased culture and evolve with changes in leadership and policy. Through flexibility 

and accountability, the Tracker ensures efficient and effective decision making. 

Tracker has helped managers and employees at every level of the department make 

better daily decisions by providing the data and links to how those decisions will 

impact the agency’s overall performance. 

Safety is a good example. Since implementing Tracker 10 years ago, the number 

of fatalities on Missouri’s roadways has dropped from 1,257 in 2005 to 766 in 2014. 

You may be aware that this week is national work zone awareness week, and in 

Missouri work zone safety is at the center of our safety culture. Staying safe in work 

zones is a partnership between MoDOT, our contractors, law enforcement, and the 

driving public. Our Tracker follows the number of fatalities, the number of injuries, 

and the number of crashes in work zones every quarter. By placing the focus of the 

performance measure on reducing those numbers, we can pursue actions that make 

work zones safer for everyone. Over ten years, we’ve seen the number of work zone 

crashes drop from 4,492 in 2003 to 1,509 in 2013. 

Our tangible result on keeping roads and bridges in good condition acknowledges 

one of our core functions and Missourians’ desire for smooth pavements and bridges 

that can safely handle growing traffic demands. With the seventh largest highway 

system in the country (almost 34,000 miles and over 10,400 bridges), Missouri ranks 

46th in revenue spent per mile. We use performance data to focus our very limited 

resources to keep our most heavily traveled roads as smooth as possible. 

Since 2005 the percentage of major highways in good condition has increased from 

60 percent to 89 percent. But by 2017, we face a funding crisis that will make these 

stats nearly impossible to maintain. When our construction awards drop below the 

amount needed just to maintain the system in the condition it’s in today, we will 

19 

struggle to meet these measures. But our performance management system will continue to help us make the best decisions on using every dollar we spend. 

We are focused on providing outstanding customer service. Every single MoDOT 

employee is responsible for this tangible result, and we strive to be respectful, responsive and clear in all our communication. With data-driven decisions and public 

input shaping performance metrics, MoDOT’s customer satisfaction has increased 

from 67 percent in 2005 to 85 percent in 2013. MoDOT’s overall customer satisfaction has attained a level that exceeds the private sector—in 2012, Apple ranked at 

83 percent, and the Missouri DOT hit 85 percent. 

Advancing economic development is yet another of Missouri’s critical tangible results. Missouri’s transportation system has a direct impact on the state’s economy. 

Local, national and international businesses depend on our roadways, rail, waterways, transit and airports to move their products and get people to their jobs. We 

believe investments in transportation create jobs and provide opportunities for advancement to all Missouri citizens. An investment in transportation provides a positive economic impact on both the citizens we serve and the communities in which 

they live. 

One such performance measure we track is the economic return from transportation investment. Our customers and state decision makers can easily see how our 

construction program contributes to the economy through this measure. Based on 

MoDOT’s 2015–2019 Statewide Transportation Improvement Program investment of 

$3.5 billion, the program is estimated to create 4,000 new jobs. Transportation investments are expected to contribute $10.1 billion of economic output during the 

next 20 years, resulting in a $3 return on every $1 invested in transportation. 

The figures tell a powerful story of economic success, but are also a sign of missed 

opportunity. When compared to the previous year’s STIP (2014–2018), the number 

of jobs created estimate decreased 40 percent. Also, compared to a period of sustained transportation investment in our state from 2005–2010, when many major 

projects were completed, our return on investment was at $4 on every $1 invested 

in transportation. 

A year ago, MoDOT completed its long-range transportation plan. Utilizing a robust public engagement plan, we visited with thousands of Missourians where they 

live, work and play to learn their vision for Missouri’s transportation future. Without question, one of the common themes they repeated over and over again was the 

desire for more transportation choices, and for improved integration of all of our 

modes of transportation. Because of our central location and because of the many 

transportation assets that we enjoy, this is important to our economic vitality and 

our quality of life. Our performance management system tracks the use and 

connectivity of our modes of transportation, and we also pay keen attention to our 

competitiveness in the efficient movement of goods. 

Because we administer state and Federal funds that pass through MoDOT and 

on to local public agencies, we have worked diligently to help them develop and deliver projects faster and on budget. The performance metrics established to that end 

have helped us see dramatic results in just a few years’ time. 

MoDOT believes it is good business to support diversity, not just in MoDOT, but 

also among its contractors, subcontractors and suppliers. Contractors, subcontractors, and suppliers working on construction projects that receive Federal aid or Federal financial participation are required to take reasonable steps to ensure disadvantaged business enterprises have an opportunity to compete for and participate 

in project contracts and subcontracts. Here, too, we have made data-driven decisions, which have helped us improve our DBE participation by 78 percent over the 

past three years. 

Looking Ahead 

MoDOT has used its performance management system to create a results focused 

culture among its employees and improved satisfaction and credibility among its 

customers. It has provided an organizational framework for a decade of leaders to 

deliver results to meet any challenge. Managers and employees at every level of our 

organization use performance data to make better daily decisions. And while the 

pending funding shortfall will undoubtedly have a negative effect on many areas of 

performance, our performance management system will continue to help us stretch 

our limited funds. Performance goals and results may change over time, but I’m confident our performance management system will remain tightly woven in MoDOT’s 

organizational fabric. 

20 

Issues and Challenges in Implementing National-Level Performance 

Management Requirements 

AASHTO and the State DOTs are supportive of the MAP–21 performance provisions and believe that the continued implementation and maturation of performance 

management principles within the transportation industry will be a positive step towards a safer and more efficient transportation system. However, this is only the 

beginning of a long journey that the federal, state, and local governments will complete together as partners. There are some recognized challenges ahead and as such, 

AASHTO and the State DOTs will continue to engage with FHWA, FTA, the National Highway Traffic Safety Administration (NHTSA), and other stakeholders to 

address these challenges together. I would like to elaborate on three of the challenges State DOTs will face: funding, minimum condition levels, and target setting. 

The first challenge is assessing necessary funding to implement performance management requirements. The cost to implement the performance management requirements: from data collection and management to analysis to reporting is not 

trivial. AASHTO conducted a survey of its members to gather additional input on 

the estimated cost of meeting new safety data requirements and came to the following conclusion for an average state: 

Year 1 Expenses 

• Information Technology Cost for entering, storing and reporting the data: $4 

million. 

• Data Collection which includes additional counting equipment, vehicles, and 

personnel: $6 million. 

• Additional Staff to administer the data collection program: $1 million. 

Year 2 through 16 Expenses 

• Annual Operations and Management: $2 million. 

Total Costs 

• Total Year 1 Expenses for All State DOTs: $561 million ($11 million/state * 51 

states) 

• Total Year 2 through 16 Expenses: $1.53 billion ($2 million/state * 51 states * 

15 years) 

• Total Undiscounted Cost: $2.091 billion 

These costs are only estimates to implement the new requirements associated 

with the safety national-level measures. Additional costs, that are similar in order 

of magnitude, will be associated with the implementation of the bridge/pavement 

national-level measures and the system performance measures. It is important that 

we balance the need to collect the necessary and important data with the benefits 

of performance management. The more State DOTs spend on data collection, management and analysis means less money we can use to invest in safety programs, 

pavement resurfacing projects, and congestion mitigation projects. 

The second challenge is the need to meet certain minimum condition levels established by U.S. DOT. An important aspect of implementing performance management 

is to provide the correct treatment at the right time in the life cycle of the infrastructure asset. This may mean not treating the worst item or segment of roadway 

first. State DOTs are concerned that the ‘‘minimum condition’’ requirements for National Highway System bridges and Interstate System pavement may force State 

DOTs into adopting a worst-first approach, since the State DOTs will be required 

to include in their overall performance management systems not only the federallyrequired assets (bridges carrying the NHS, Interstate Pavement and non-Interstate 

NHS pavements) but many locally and state-owned assets as well. 

The third challenge is the area of target setting. It is crucial for the State DOTs 

to work closely with our planning and transit partners in developing and establishing targets and then working together to meet those targets. However, target 

setting is not a well-established science, especially when considered under political 

context. Every state and municipality faces different constraints and opportunities 

affecting their transportation system. Funding levels and sources vary, as do environmental conditions, population growth trends, and legislative and gubernatorial 

mandates and priorities. State DOTs and MPOs will have to face the realities of 

their individual contexts and will need to establish appropriate targets that take 

into account these unique situations. For many, this will be a challenge; but the 

traveling public will be rewarded with improved mobility outcomes. 

21 

Conclusion 

Performance management, the development of performance measures, and establishing performance targets is not new to the State DOTs. For the last decade, many 

State DOTs have developed and implemented comprehensive and robust performance management systems to balance investment decisions against resource limitations. An important aspect of this has been examining performance measures for a 

wide variety of areas from safety to asset condition to performance of the transportation system. State DOTs are concerned with all of these performance areas and 

must balance the funding of programs and projects across areas while at the same 

time meet stakeholder expectations during a time of financial uncertainty. 

I want to thank you again for the opportunity to testify today, and I am happy 

to respond to any questions that you may have. 

Senator FISCHER. Thank you, sir. 

Dr. Graham? 

STATEMENT OF JOHN D. GRAHAM, PH.D., DEAN, 

SCHOOL OF PUBLIC AND ENVIRONMENTAL AFFAIRS, 

INDIANA UNIVERSITY 

Mr. GRAHAM. Good morning, Madam Chair and members of the 

Subcommittee. Thank you for the opportunity to be here. 

My topic is safety regulation—first of all, the concept of a prescriptive standard, which is to specify technology, design, labor 

practice, or a set of human behaviors aimed at improving safety. 

In the 1970s, this was the most common form of safety regulation around the world, but this particular form has come out of 

favor and has been replaced in many applications by the performance standard. The approach of performance is to specify a type 

and level of safety performance and leave the choice of compliance 

method to the company or the regulated entity. 

This worldwide trend I mentioned has been documented in reports by the OECD, where they survey regulatory practices around 

the world. 

Where did this idea come from? It has many parents, as many 

good ideas do, but one of the most important people to champion 

the idea was a young Harvard law professor named Stephen Breyer 

in his 1982 book, ‘‘Regulation and Its Reform.’’ 

What are the advantages of a performance standard? 

Well, the first and most basic advantage is it reduces the compliance cost to the company because of the firm has the flexibility to 

find the least-cost compliance methods for achieving the safety objective. 

Second of all, the performance standard fosters innovation in the 

industry because it doesn’t lock in companies into any specific technology or labor practice. It allows innovation to occur over time as 

new opportunities are created. 

And, third, it reduces the opportunities for what regulatory scholars call ‘‘rent seeking’’—that is, the efforts of people who are inventors of a specific idea to try to persuade a regulator to mandate 

their specific tool or technology or practice rather than allowing 

competition to occur over time. So we don’t want to create a regulatory system that invites a lot of this rent seeking. 

There are practical issues in making sure that performance 

standards work properly. The key premise is you must have a 

workable means of measuring performance, and the system must 

have two capabilities: You have to be able to distinguish performance of two different companies so you can say, ‘‘This company is 

22 

performing better than that company,’’ and you also must be able 

to distinguish performance over time with the same company. ‘‘This 

company was out of compliance; then they came into compliance.’’ 

You must have a performance system that can accomplish these. 

If you don’t, then you don’t have any way to keep legally accountable the firm for its compliance. So you do have important obligations to design a performance system that can work. 

Now, let me go further to risk-based performance systems. And 

here we are measuring adverse safety events directly, usually in 

terms of number of crashes, injuries, or fatalities. 

But sometimes these events are so rare you can’t actually do a 

performance system using this data because they don’t happen frequently enough. In those cases, we use mathematical models and 

risk analysis that simulates safety events. 

We often utilize data not just on the adverse events themselves 

but on the near misses, like in the famous airplane context. We 

track near misses as well as actual crashes. So these models we are 

looking at can then be used to include information about fatalities, 

injuries, accidents, but also near misses. 

So in my written testimony, I make several suggestions to move 

along in the pathway toward more performance-based standards. 

The first idea I put on the table is to amend prescriptive standards in a general way to permit alternative compliance mechanisms that achieve at least the same degree of safety protection as 

does the prescriptive standard. This is sometimes called an equivalency clause because the company needs to demonstrate that they 

can accomplish the same equivalent level of safety with this alternative method of compliance. 

The burden of proof is placed on the company to show that they 

can provide equivalent safety. And there has to be a workable plan 

of inspection and enforcement that is embedded in an alternative 

compliance approach. 

The agency, when they receive an alternative compliance plan, 

has an obligation to respond publicly to whether they are going to 

approve it or disapprove it. And, of course, that is subject to judicial review under something like the arbitrary and capricious test. 

The second suggestion I make is that new regulations should be 

performance-based whenever possible, but even when they are not, 

you should include that equivalency clause that allows the industry 

to innovate and suggest better alternatives. 

And, third, we have to keep in mind that our regulatory staffs 

in many of our agencies, they have not been trained in the 

performance- and risk-based approaches I am talking about. We 

will need to have some funds for staffing of people in regulatory 

agencies that get them up to snuff to do this type of work. 

Thank you very much. I look forward to the comments and questions. 

[The prepared statement of Mr. Graham follows:] 

PREPARED STATEMENT OF JOHN D. GRAHAM, PH.D., DEAN, SCHOOL OF PUBLIC AND

ENVIRONMENTAL AFFAIRS, INDIANA UNIVERSITY

My name is John D. Graham. I am Dean of the School of Public and Environmental Affairs, Indiana University (Bloomington and Indianapolis). From 2001 to 

2006 I served as the Senate-confirmed Administrator, Office of Information and Regulatory Affairs (OIRA), U.S. Office of Management and Budget (OMB). Prior to servVerDate Nov 24 2008 11:39 Apr 27, 2016 Jkt 075679 PO 00000 Frm 00026 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\99914.TXT JACKIE
23 

ing at OMB, I was the founding Director of the Center for Risk Analysis at the Harvard School of Public Health (1990–2001). I have published ten books and hundreds 

of articles on topics related to regulatory reform, especially on topics related to 

health, safety, and environmental regulation. I earned my BA in economics and politics from Wake Forest University, my Master’s degree in public affairs from Duke 

University, and my Ph.D. in public affairs from Carnegie-Mellon University. My doctoral dissertation was one of the early analyses of the benefits and costs of the automobile airbag. 

My testimony today addresses a classic issue in health, safety and environmental 

regulation: whether a regulation should prescribe certain technologies, designs, 

practices and/or behaviors (‘‘prescriptive standards’’) or whether a regulation should 

compel achievement of a particular type and level of performance (‘‘performance 

standards’’), leaving the choice of compliance strategies to the discretion of the regulated entity (the ‘‘regulatee’’) (Coglianese et al, 2002). Since the 1970s, when the law 

and economics literatures made a strong case for a focus on performance (Breyer, 

1982), regulatory practice has shifted away from prescriptive rules toward performance-oriented standards, but the trend is faster in some fields of practice than in 

others. The trend toward performance-based approaches to regulation began in the 

United States but is now a global trend (Shapiro, 2013). In the diverse world of 

transportation regulation, regulatory practices vary considerably, not just between 

agencies but from regulation to regulation. 

The Case for Performance Standards 

Performance standards have several advantages over prescriptive standards 

(Mannan, 2012). I offer a concrete illustration of each advantage below. 

First, a performance standard tends to be less costly to the regulatee because the 

regulatee has the flexibility and the incentive to find the least-cost method(s) of 

compliance. Under the Clean Air Act, EPA shifted from a mandate of pollution-control equipment (e.g., scrubbers) to numeric emission limitations on powerplants. 

When given the flexibility of a sulphur-dioxide emission limitation (instead of a prescriptive standard), some owners of powerplants found that it was less costly to shift 

from high-sulfur to low-sulfur coal than to install expensive and energy-consuming 

scrubbers. 

Second, a performance standard is more receptive to industrial innovation because 

the standard is not written to mandate certain technologies, designs, practices and/ 

or behaviors. When a prescriptive standard requires that safety be accomplished by 

human labor, it discourages industry investment in labor-saving technologies that 

achieve the same safety outcome without human labor. Given the possible future 

of safer, driverless cars, it may be unwise for NHTSA to craft prescriptive regulations that presume that a licensed human being is driving the vehicle. A similar 

issue arises in freight safety regarding the optimal number of crew in the cab and 

the prospect of future implementation of automatic speed control technologies. 

Finally, opportunities for ‘‘rent-seeking’’ (the inappropriate use of regulatory 

power to benefit some technologies/firms over others) may be curtailed when standards are defined objectively in terms of performance. If a regulator is permitted or 

inclined to prescribe specific technologies, there will be a temptation on the part of 

suppliers of safety equipment to lobby the regulator in ways that ensure that their 

type or brand of equipment is prescribed in the standard. A performance standard 

does not eliminate the incentives for rent seeking but it may diminish them since 

the standard is not defined in terms that specify a particular design or technology. 

Elsewhere, I have written about how lobbies favoring the electric car have succeeded 

in biasing recent regulatory systems in favor of electrification as opposed to other 

effective ways of improving fuel economy and reducing greenhouse gas emissions 

(e.g., conventional hybrid engines, such as used in the Toyota Prius, and the clean 

diesel engines now marketed be German vehicle manufacturers) (Graham et al, 

2014). The same lesson applies to requirements, such as inspection technologies, in 

the pipeline, trucking, railroad and maritime industries. 

When Performance Standards are Impractical 

There are situations when it is not feasible or practical to devise a performance 

standard, usually because a viable system of measuring performance and inspecting 

firms/products for their performance is not available (Metzenbaum, 1998). In order 

to be feasible, a performance-based system must be capable of distinguishing the 

performance of one firm versus another and must be capable of documenting 

changes in a firm’s performance over time. Without firm-specific measurement capability, a regulator cannot hold firms legally accountable for performance. 

A performance-based system must also be practical in the sense that it can be 

coupled with an inspection/enforcement system that can determine which firms are 

24 

in compliance and which are out of compliance. Since some companies are not 

averse to breaking the law when enforcement systems are weak, a performance 

standard must be framed in ways that inspection and enforcement systems can detect and deter violators. 

One of the purported strengths of the prescriptive standard is that it can be 

framed in ways that facilitate inspection/enforcement (i.e., an inspector may have 

a checklist of hardware or operational practices that he or she uses to determine 

whether a facility or product is in compliance with the standard). However, in order 

to have knowledge that specific hardware and operational practices are safer, a regulatory agency presumably has access to performance-related data. The question becomes whether such data can be utilized to inform a practical performance standard. 

When the outcome of interest can be measured continuously on a day-to-day basis 

(e.g., emissions from a smokestack), a performance standard is clearly feasible. 

When the outcome of interest is extremely rare and potentially catastrophic (e.g., 

a meltdown of a nuclear reactor), it is not practical to define performance by measuring directly the frequency of meltdowns. A similar situation exists with low-probability mishaps involving transport of hazardous materials. 

In the nuclear sector, it is practical to use as a performance measure a precursor 

of meltdowns such as the frequency of reactor shutdowns. In airline safety, performance-oriented analyses focus on near misses as well as actual crashes. My understanding is that FRA and the railroads have launched a pilot program called confidential close-call reporting that is similar to the concept of near misses (FRA, 

2015). In my opinion, this is a constructive development. 

Using Risk Analysis to Inform Performance Standards 

When events are rare in frequency, the tools of risk analysis can be employed to 

define performance standards. With risk analysis, a predictive mathematical model 

is used to estimate the probability of an adverse event as a function of the technologies, designs, practices and behaviors observed in the industry (NRC, 2013). The 

inputs to the model are based on historical data, known physical/biological/behavioral relationships, and expert judgement. The performance standard might be defined as a threshold probability of the adverse event (e.g., a small probability of an 

airplane crash, since zero probability is infeasible). 

Compliance with the performance standard is demonstrated when the firm shows 

the regulator that, given the inputs at their firm, the predicted probability of an adverse event is below the threshold probability (‘‘safety’’) specified by the regulator. 

Some companies might comply with the safety threshold through investments in 

technology; others may invest in superior training programs for their employees. In 

either case, the firm must be able to show, through risk analysis, that their compliance approach meets the risk-based standard specified by the agency. 

When predictive models of risk analysis are used in performance regulation, it is 

common for regulatory agencies to offer technical guidance to companies on how the 

models should be constructed, tested, and validated. Default values for certain inputs may be specified by the regulatory agency, unless a firm can supply valid data 

to support an alternative value. When a company submits their risk analysis, using 

the template suggested by the regulatory agency, it may be appropriate for the company to subject their analysis (choice of inputs and calculations) to independent peer 

review by qualified experts in the field. Alternatively, the regulatory agency may organize its own peer review processes, on the guidelines for models or on the risk 

analyses submitted by specific companies. In order to rely less on prescriptive standards, greater use of risk analysis may be required in the pipeline, trucking, railroad 

and maritime industries. 

Suggestions to Accelerate the Trend Toward Performance Standards 

My experience in regulatory reform around the world suggests that there is growing recognition of the value of performance-oriented approaches to regulation. In 

order to accelerate the trend toward performance standards, I suggest three directions for Congress and Federal regulatory agencies. 

1. All prescriptive standards should be amended to permit alternative compliance 

mechanisms that are supported by performance information and achieve at least an 

equivalent level of protection. 

When a regulatee can make an analytically rigorous case that an alternative compliance strategy provides at least equivalent safety performance to a prescriptive 

standard, the regulatee should be permitted by the agency to pursue the alternative 

strategy, subject to an inspection/enforcement regime that is established with the 

alternative strategy. Even if a regulatory agency cannot imagine a viable alternative 

25 

compliance strategy, rules should be written to permit regulatees to propose alternative compliance mechanisms, since specialists in industry may be able to innovate 

in ways that regulators cannot anticipate. 

Given the large number of prescriptive standards that have already been codified 

at numerous regulatory agencies, it would take decades to amend each of the standards on a rule-by-rule basis. A better approach would be for Congress, in a generic 

regulatory reform statute, to authorize—at any health, safety or environmental 

agency—alternative compliance mechanisms that achieve at least the same amount 

of safety performance as the prescriptive standard. The language I am referring to 

is sometimes referred to as ‘‘an equivalency clause’’ because the regulatee is obliged, 

with their alternative compliance methods, to accomplish an equivalent level of 

health, safety or environmental protection. The evidentiary burden of proving equivalent safety protection should be placed on the regulatee but, in the event that an 

agency declines to permit alternative compliance, the agency should be required to 

state its reasons publicly, and the agency’s decision should be reviewable in Federal 

court under the ‘‘arbitrary and capricious’’ test. That test provides a measure of deference to the agency’s judgment, which I think is necessary to assure public confidence in the system. 

With regard to new rulemakings, performance standards should be preferred 

whenever possible. If new prescriptive standards are enacted, they should be coupled with permission for regulatees to propose alternative compliance mechanisms 

that achieve equivalent protection. 

2. When new safety regulations are proposed, agencies should be required to include, in their regulatory impact analyses, a plan for how they intend to evaluate 

the regulation after it is implemented. 

The term ‘‘retrospective evaluation’’ is often used to describe the process whereby 

agency analysts evaluate how effective a safety rule has been after the rule is enacted. Regardless of whether the rule is prescriptive or performance based, the 

agency should describe what data they plan to collect and how they intend to analyze the data. My experience is that, if an agency does not know how they would 

evaluate a new rule, after it is implemented, then OMB and the regulated community should begin to ask hard questions about whether the resources invested in the 

rulemaking might be better invested elsewhere. 

3. Congress should provide additional resources to Federal regulatory agencies for 

training in modern methods of performance assessment and risk analysis, so that 

agency personnel can transition more rapidly to the world of performance-based regulation. 

Many of the professional staff at Federal regulatory agencies have extensive experience with prescriptive regulation but little to no experience or training related to 

performance measurement or the development of performance standards. The need 

for training in risk analysis is particularly acute because many of the existing regulations that are prescriptive address low-frequency adverse events, the types of situations where direct measurement of performance will not be feasible. In order for 

those rules to be redrafted as performance standards, the analytic tools of risk analysis will be required. 

The cost of this suggestion is not large, as intensive courses in risk analysis for 

mid-career professionals have already been developed and are offered by the Society 

for Risk Analysis (SRA), a mission-oriented association of 2,000+ engineers and scientists. SRA is a nonprofit group dedicated to enhancing the application of risk 

analysis methods in government and industry. 

In summary, the trend toward performance-based approaches to regulation is evident throughout the world (Coglianese, 2012). The advantages of performance 

standards are intuitive and compelling. If Congress does not act, Federal agencies 

will move in this direction but progress will continue to be slow and uneven. I have 

made three suggestions for legislative action that may accelerate the replacement 

of prescriptive standards with performance standards. 

Thank you for your time and attention, and I look forward to questions and comments about my testimony. 

References 

Breyer. S. Regulation and Its Reform. Harvard University Press, Cambridge, MA. 1982. 

Coglianese, C. Measuring Regulatory Performance: Evaluating the Impact of Regulation and 

Regulatory Policy. OECD. Paper No. 1, Paris, France, August 2012. 

Coglianese, C, Nash, J, Olmstead, T. Performance-Based Regulation: Prospects and Limitations in Health, Safety, and Environmental Protection. Regulatory Policy Program Report Number RPP–03(2002). 

26 

Federal Railway Administration, 2015, http://www.fra.dot.gov/Page/PO347. 

Graham, J. D., Rupp, J., Cisney, J., and Carley, S., No Time for Pessimism about Electric 

Cars: Issues in Science and Technology, v 31, no. 1, pp. 33–40. 2014. 

Mannon, SM. The Pros and Cons of Performance-Based Regulatory Models. Mary Key O’Connor Process Safety Center. Texas A&M University System. 2012. 

Metzenbaum, S. Making Measurement Matter: The Challenge and Promise of Building a Performance-Focused Environmental Protection System. Brookings Institution. Washington, DC. 

1998. 

Nuclear Regulatory Commission. Background and Staff Guidance on Performance-Based Regulation. January 3, 2013, www.nrc.gov/about-nrc-regulatory/risk-informed/concept/performance.html#process. 

Shapiro, S et al., Analysis of the Federal Oil and Gas Regulatory Landscape. Report Prepared 

for OSHA. Edward J Bloustein School of Planning and Public Policy. Rutgers University. May 

2013. 

Senator FISCHER. Thank you. 

And, Dr. Sweatman, welcome. 

STATEMENT OF DR. PETER SWEATMAN, DIRECTOR, 

UNIVERSITY OF MICHIGAN TRANSPORTATION 

RESEARCH INSTITUTE 

Mr. SWEATMAN. Chairman Fischer, Ranking Member Booker, 

and members of the Subcommittee, thank you for the opportunity 

to testify today about the 21st-century role of performance measurement in our Nation’s surface transportation system. 

And thank you, Senator Peters, for the kind introduction and for 

making a special effort to be here today. 

The University of Michigan created a new transportation ecosystem of global companies to launch the Michigan Mobility Transformation Center to help revolutionize mobility through connected 

and automated vehicle technologies. I also chair the ITS America 

Leadership Circle, and I am representing them here today. 

MAP–21 made reforms to create a more performance-based 

transportation system, covering safety, state of good repair, traffic 

congestion, and freight movement. To implement these reforms, 

state and local transportation agencies require access to better 

tools, including ITS—intelligent transportation systems—to measure and to operate. 

As this committee considers ways to improve the nation’s freight 

network, we encourage funding eligibility and an increased Federal 

share for projects that incorporate new and innovative technologies—that is, freight-related IRS. 

But we must look ahead. The advent of connected vehicles, or 

V2X, automated vehicles, and big data will redefine performance 

measurement. Success in deploying more powerful technologies will 

drive the volume and relevance of available data. Metrics, therefore, need to become less prescriptive, allowing the operator to use 

the most powerful measures. The technology will ensure that the 

most powerful measures are also the most available measures. 

The starting point for technology-driven performance is safety, 

with over 33,000 fatalities and 2.3 million injuries on our Nation’s 

roads each year. Transportation Secretary Anthony Foxx has said 

that V2X technology represents the next generation of auto safety 

improvements. 

A smart corridor is being deployed in Michigan by the Michigan 

Department of Transportation, Ford, and General Motors. General 

Motors CEO Mary Barra announced cars equipped with V2X technology starting in the 2017 model year. 

27 

V2X technology will unleash innovation, from crash-avoidance 

safety, advanced traffic management systems, and on-demand services to real-time traffic, transit, and parking information, and 

countless new transportation applications. 

V2X communication utilizes the 5.9 gigahertz band of spectrum 

set aside by the FCC. We need that band for safety. There is no 

substitute. The FCC should not open up the 5.9 gigahertz band to 

unlicensed devices without vigorous real-world testing. 

The 21st-century performance of the nation’s transportation system depends squarely on V2X. Transportation companies, manufacturers, consumers, and agencies will be able to select the most relevant performance data and take performance measurement to a 

completely new level. 

How do we get there? 

The ITS Joint Program Office must be equipped for deploying 

V2X, as well as increasing vehicle automation, big data, and other 

next-generation technologies. We propose that the U.S. DOT’s ITS 

research program be authorized at the administration’s requested 

levels of $158 million in 2016 and $935 million over 6 years. 

We recommend the authorization of funding for automated and 

connected vehicle technology corridors and pilot programs. 

We recommend that a cross-agency automated vehicle research 

initiative be established within the ITS Joint Program Office to 

conduct collaborative research with private industry, state and 

local agencies, university research centers, and national labs. 

And we propose that a 21st-century Transportation Data Center 

of Excellence be established in the form of a partnership between 

the U.S. DOT, the automotive industry, and research universities. 

This center should carry out data fusion and analytics for transportation performance and measurement, concentrating on the innovative use of ITS, V2X, and automated vehicle data. 

We encourage U.S. DOT, as well as the states, to review existing 

automotive and commercial vehicle safety standards, regulations, 

and policies. We need to remove unintended barriers to the operation of connected and automated vehicles. And we need to ensure 

that the data flowing from the new technology is fully admissible 

for performance management. 

Right now we have the opportunity to shape the future performance of our Nation’s transportation system. That future is determined by technology and will be measured by technology. 

Thank you again for this opportunity, and I look forward to your 

questions. 

[The prepared statement of Mr. Sweatman follows:] 

PREPARED STATEMENT OF DR. PETER SWEATMAN, DIRECTOR, UNIVERSITY OF

MICHIGAN TRANSPORTATION RESEARCH INSTITUTE

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

thank you for the opportunity to testify today about the 21st Century role of performance measurement in our Nation’s surface transportation system. 

My name is Peter Sweatman, Director of the University of Michigan Transportation Research Institute, or UMTRI. 

The University of Michigan created a new transportation ecosystem of global companies to launch the Michigan Mobility Transformation Center (MTC), to help revolutionize mobility through connected and automated vehicle technologies. 

I also chair the ITS America Leadership Circle. 

28 

Encouraging Innovation to Meet Performance Management Goals 

MAP–21 made reforms to create a more performance-based transportation system. 

Covering safety, state of good repair, traffic congestion and freight movement. 

To implement these reforms, state and local transportation agencies require access to better tools—including ITS—to measure and to operate. 

Congress should ensure that ITS technologies are eligible within all the core highway formula programs and that a higher Federal match is made available. 

As this Committee considers ways to improve the Nation’s freight network, we encourage funding eligibility and an increased Federal share for projects that incorporate new and innovative technologies—freight-related ITS. 

But we must look ahead. The advent of connected vehicles (V2X), automated vehicles and big data will redefine performance measurement. Success in deploying 

more powerful technologies will drive the volume and relevance of available data. 

Metrics therefore need to become less prescriptive, allowing the operator to use the 

most powerful measures. The technology will ensure that the most powerful measures are also the most available measures. 

Performance, Driven and Measured by 21st Century Technology 

The starting point for technology-driven performance is safety, with over 33,000 

fatalities and 2.3 million injuries on our Nation’s roads each year. 

Transportation Secretary Anthony Foxx has said that V2X technology ‘‘represents 

the next generation of auto safety improvements’’. A smart corridor is being deployed in Michigan by the Michigan DOT, Ford and GM. GM CEO Mary Barra announced cars equipped with V2X technology starting in the 2017 model year. 

V2X technology will unleash innovation, from crash-avoidance safety, advanced 

traffic management systems and on-demand services to real-time traffic, transit and 

parking information and countless new transportation applications. 

V2X communication utilizes the 5.9 GHz band of spectrum set aside by the FCC. 

We need that band for safety. There is no substitute. The FCC should not open up 

the 5.9 GHz band to unlicensed devices without vigorous, real-world testing. 

The 21st Century performance of the Nation’s transportation system depends 

squarely on V2X. Transportation companies, manufacturers, consumers and agencies will be able to select the most relevant performance data, and take performance 

measurement to a completely new level. 

Advancing ITS, Big Data and Automated Vehicle Research 

How do we get there? 

The ITS Joint Program Office must be equipped for deploying V2X, as well as increasing vehicle automation, big data and other next-generation technologies. We 

propose that the U.S. DOT’s ITS research program be authorized at the Administration’s requested levels of $158 million in 2016 and $935 million over 6 years. 

We recommend the authorization of funding for Automated and Connected Vehicle 

Technology Corridors and pilot programs. 

We recommend that a cross-agency Automated Vehicle Research Initiative be established within the ITS Joint Program Office, to conduct collaborative research 

with private industry, state and local agencies, university research centers and national labs. 

We propose that a 21st Century Transportation Data Center of Excellence be established in the form of a partnership between USDOT, the automotive industry 

and research universities. This center should carry out data fusion and analytics for 

transportation performance and measurement, concentrating on innovative use of 

ITS, V2X and automated vehicle data. 

We encourage U.S. DOT, as well as the states, to review existing automotive and 

commercial vehicle safety standards, regulations, and policies—we need to remove 

unintended barriers to the operation of connected and automated vehicles on public 

roadways. And we need to ensure that data flowing from the new technology is fully 

admissible for performance management. 

Right now we have the opportunity to shape the future performance of our Nation’s transportation system. That future is determined by technology, and will be 

measured by technology. V2X, automation and 21st Century data represent the path 

to that future. 

Thank you again for this opportunity, and I look forward to your questions. 

Senator FISCHER. Thank you, Doctor. 

My Ranking Member is on an especially tight schedule today, so 

I would recognize Senator Booker to begin the questioning. 

29 

Senator BOOKER. I am so grateful for that, the generosity of allowing me to go quickly and go first. 

Real quick, Dr. Graham, I really enjoyed your testimony, and so 

did my staff, your written testimony. And so let me just jump in 

real quick, if I can use 2 minutes, and then go to the Under Secretary on another topic. 

So performance-based regulations obviously can have positive impacts, and you indicated that a lot. But there are a lot of concerns 

that are raised that, in some instances, performance-based regulations could have unintended consequences, especially when it 

comes to safety. And, for example, concerns have been raised about 

performance-based regulations could result in largely self-regulated 

industries with limited oversight. 

And just for the record, can we drill down? As performance-based 

regulations are considered, how can we ensure that the proper 

oversight continues? And are there other concerns that exist with 

transitioning to a performance-based system of regulation? 

Mr. GRAHAM. Great question. 

In a performance-based system, each company that complies, 

they have to lay out what their compliance methods are, and then 

those are then inspected and enforced by the agency in the same 

way that a prescriptive standard is enforced. 

So, in terms of the ultimate oversight, the process is not different. There have to be specific practices, technology, or whatever 

that is used to achieve the standard. 

Senator BOOKER. Great. 

And you made a very good point. I think both Chair Fischer and 

I were appreciative of the suggestions you made. And so part of 

that has to be the people that are providing the oversight, the regulators themselves, would need specific training. 

And can you be a little bit more specific on what you think the 

regulators themselves have to be trained up on? 

Mr. GRAHAM. Yes. So there is a professional society, the Society 

for Risk Analysis, that has existing training programs on how to 

use risk analysis methods for situations where the frequency of the 

adverse event is very rare but the adverse consequences are really 

bad. 

Senator BOOKER. Right. 

Mr. GRAHAM. OK? And a lot of these modal agencies, they have 

situations where they have safety concerns but they don’t happen 

that often. They need to use risk analysis tools to develop a performance standard. 

Senator BOOKER. So micro fissures in rail lines, for example. 

There is a lot of incentive financially not to do all the requirements 

because they are so rare, and when they happen, the industry—— 

Mr. GRAHAM. Then they are pretty bad. 

Senator BOOKER.—says, ‘‘My bad.’’ 

Mr. GRAHAM. Right. 

Senator BOOKER. And so you need to figure out some way to 

make sure that the appropriate steps are being taken. Correct? 

Mr. GRAHAM. Correct. 

Senator BOOKER. Great. 

Mr. Under Secretary, just jumping real quick to an issue. You 

know, I have lots of concerns, 16 months down here, that the FedVerDate Nov 24 2008 11:39 Apr 27, 2016 Jkt 075679 PO 00000 Frm 00033 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\99914.TXT JACKIE
30 

eral Government doesn’t seem to be moving at the pace of innovation, whether it is the backlogs at the Patent Office, whether it is 

FDA approvals. All of these things are growing in my frustration. 

I look forward to a hearing later today about drones. 

But just going to ask you a quick question about autonomous vehicles. This is exciting to me. I am encouraged that the NHTSA is 

conducting research on automated vehicles and would be interested 

to know what further steps DOT plans to take to unleash what 

could be incredible benefits of this technology. 

Mr. ROGOFF. Well, Senator Booker, our principal role, in addition 

to just trying to be as helpful as we can to all of the players in this 

very creative and important space, is to ensure the safety of whatever technologies emerge. And they are very dynamic technologies 

that could yield very different solutions. 

It does yield itself, in many ways, to a performance-based approach. But I think, importantly, there are also concerns as it relates to cyber hacking and the security of an autonomous vehicle 

system. We are working carefully not just within the DOT but with 

other agencies, including NIST, the FBI, others, to make sure that 

whatever system is stood up is safe for the drivers and is resistant 

to hacking. 

I have to say, I have an 84-year-old mother who is still on the 

road. Autonomous vehicles can’t come fast enough for me because 

I worry about it all the time. But we will all be 84 at one point, 

and autonomous vehicles hold the promise for keeping us all on the 

road. 

Senator BOOKER. Well, there is a saying, ‘‘b’ezrat hashem’’ that 

we all get to be 84. 

Thank you very much, Chairman. 

Senator FISCHER. Thank you, Senator Booker. 

Mr. Under Secretary, we know that MAP–21 required the DOT 

to include performance standards for a number of programs and 

grants that are related to project funding. In fact, these performance measures follow the GAO recommendations to provide a 

strong foundation for holding grant recipients responsible for 

achieving those objectives and measuring those performances. 

What steps is the DOT taking to progress toward performance 

targets for regulations? And can you provide us some examples, 

please? 

Mr. ROGOFF. Well, sure. Let me talk a little bit about our performance measures that we are doing in MAP–21, and then let me 

talk about some of the things we are doing in other modal agencies. 

As Mr. Nichols pointed out, we are along a progression right now 

in working with our state partners to establish for the first time 

in the Federal aid highway program performance measures that 

will be accountable by state. We are at various levels of development. We have NPRMs out on two of them. A draft NPRM is coming out on another one. We are in a comment period on a fourth. 

We have wanted to work very closely, exhaustively frankly, with 

our states, because we need to have buy-in by all of them as to the 

system we are using. We are making good progress, not as quickly 

as some of us, or all of us, maybe would like, but we are going to 

get these implemented, and then we are going to have buy-in when 

we do. 

31 

In other agencies, I think we are making very good progress in 

certain areas that really lend themselves to performance-based approaches. Within the FAA, when it comes to general aviation, the 

FAA is about the business of rewriting the whole Part 23 aviation 

code as it relates to safety measures related to smaller aircraft. 

Within the Federal Railroad Administration, individual railroads 

are being asked to produce risk-reduction plans that are all about 

the performance rather than any specific metric that they need to 

accomplish. 

And one I am particularly fond of and proud of—earlier in the 

administration, I served as the Federal Transit Administrator, and 

we successfully got MAP–21 to include transit safety authority for 

the department. It overcame a prohibition that had been in law 

since 1964. This really lends itself to a performance-based approach 

because we are not burdened with several decades of legacy regulations that have been in place. We are starting with a clean slate, 

developing regulations for the first time, which is a great and rare 

opportunity to be performance-based from the get-go. And that is 

what they are doing at the FTA. 

Senator FISCHER. In your past life as the FTA Administrator— 

you have just spoken about that—how do you compare the FTA’s 

approach to safety to the FRA’s approach? 

Mr. ROGOFF. Well, the approaches are very different. Like I said, 

one has many decades of prescriptive measures that have been in 

place and have also, like I said earlier, made for the safest year on 

record in 2014. 

FTA is dealing with a hugely more diverse universe of operators. 

Light-rail systems are not identical, whereas commuter rail systems largely are. They also, in the transit safety account, use different bus rapid transit and standard bus processes. 

Transit is an extraordinarily safe mode of transportation that 

can be made even safer. And they have what Dr. Graham referred 

to as the risk of very rare but very catastrophic potential events, 

as we discovered in the Washington Metro incident in 2009. 

So we are coming at it from a risk-reduction approach, and FRA 

is moving in that direction. But FRA also has a more uniform set 

of users in the form of the freight railroads and the commuter railroads. 

Senator FISCHER. Do you think if the FRA was granted that safety authority today, would they still be regulating the same way 

they are? Would it change because of where we are at today compared to when these regulations were put in place? 

Mr. ROGOFF. I think the FRA has, frankly, the ability, should it 

choose to move to a performance-based approach—— 

Senator FISCHER. You think they have—— 

Mr. ROGOFF. I believe—you know, I would want to review this 

with counsel’s office, obviously, but I am not sure that—I mean, in 

certain areas, they have prescriptive rules that are in the statute. 

If you really wanted to move away from those rules, you would 

have to unwind them legislatively. 

But I think in other ways, in other areas, we see FRA moving 

to a more performance-based approach, as I said, in these risk-reduction plans that they are having all of the railroads put together. 

32 

So I think progress can be made. As I said in my opening statement, it needs to be made carefully. You don’t want to move to a 

performance-based standard until you at least know it is as safe. 

And that requires, as many of the witnesses pointed out, a lot of 

data collection, a lot of analysis, and willing partners to have all 

of their data be transparent. Absent that, we can’t make progress. 

Senator FISCHER. And we need to encourage people to be willing 

partners, wouldn’t you agree? 

Mr. ROGOFF. Absolutely. You can’t get there without them. 

Senator FISCHER. OK. Thank you. 

Senator Wicker? 

Oh, I am sorry. Senator McCaskill was here first. 

Senator McCaskill? 

Senator MCCASKILL. Thank you. 

Mr. Nichols, in your testimony, you indicated that it is great to 

talk about performance management, and we all want performance 

management. I am a big believer in performance metrics. As you 

may remember, back, I instituted performance auditing—— 

Mr. NICHOLS. Yes, ma’am. 

Senator MCCASKILL.—in the state of Missouri when we had 

never had performance auditing before. 

But you also point out that it is a little bit like us talking a lot 

about an infrastructure bank without telling people that the money 

in the bank comes from tolling if we just talk about performance 

metrics without talking about funding. 

Can you speak to the challenges that you are facing at the state 

level with the uncertainty of our fits and starts of funding of highway transportation from Washington? 

Obviously, we have a deadline approaching in May, and I would 

like the consequences of us embracing another 6-month extension 

as opposed to what used to be noncontroversial around here, which 

was a multiyear, at least level spending amount for our Highway 

Trust Fund. 

Mr. NICHOLS. Thank you, Madam Chairman and Senator. Again, 

great question. 

And to begin with, performance management, as you know, is a 

process as much as it is a product and a tool. And it is a culture 

that one develops because we have to prioritize the very limited resources that we have so that we are focusing on achieving results 

that make a difference in specific areas. Again, I mentioned seven 

tangible results. I think we have provided a copy of our Tracker, 

and it is really our performance management document that we 

use to do our business with. 

Things like safety—we have talked so much about safety here. 

But it is also about system condition, congestion relief. We have 

talked about freight, we have talked about ports, and all those different things of business that we do in our state. There is not 

enough money to take care of all of the needs that our customers 

are asking us to achieve. 

So what we are doing with performance management, through 

an enterprise risk-management system, I will mention, as Dr. 

Graham talked about also, is prioritizing where those limited dollars go to achieve the most benefit of the results out of them. 

33 

And, obviously, the singular focus is safety and reduction of fatalities, which we have made progress on but not enough progress. 

You know, one fatality is one too many. 

The issue of the national funding issue that we have—and, obviously, I speak for all of AASHTO and all the states, and that is 

that we do need a sustainable funding program, a long-term bill, 

for lots of reasons, which I won’t take a lot of your time today, but 

it does provide us the time to do the planning, the long-term planning on our projects. 

Because we are in fits and starts, and we need that time to get 

our projects ready. And we are always on this precipice of providing construction projects and then the funding stopping and 

then we are going to have to stop or prevent a project from moving 

forward, anywhere in our country. 

Many states have reduced their highway programs just because 

they can’t predict where the Federal funds are going to be after 

May 31 of this year. And so it is a big challenge that all of us are 

facing. 

Senator MCCASKILL. Have we put a price tag on that, when we 

have to stop a project because we can’t get our act together out 

here and get multiyear highway funding done? Has nationally, if 

any of you are aware, or if we have in Missouri put a price tag on 

what that is costing us in terms of these projects and costs going 

up because of delay and so forth? 

Mr. NICHOLS. There is an increase. I do not have that number, 

and we can provide a number like that. But, obviously, the impact 

of contractors stopping their work and having to restart; closing out 

a project costs money for a contractor, or a consultant who is doing 

the engineering work for us also. So there is an impact to the restart of a project once it gets tabled or shelved. 

Senator MCCASKILL. What is the—— 

Mr. ROGOFF. Senator McCaskill, I—— 

Senator MCCASKILL. Yes? 

Mr. ROGOFF.—would just add one thing, because we have an 

added concern at the department that even goes beyond just the 

mechanics of the contracting. And that is that, having gone 

through 32 short-term extensions now to date, communities are 

really losing their ambition and their vision to actually make 

things better. 

How do you actually plan for a major bridge replacement project 

that could take anywhere from 3 to 5 years if you don’t know if the 

Federal Government is going to reimburse you 8 months later? And 

that is what people like Mr. Nichols have been put through now 

for a number of years. Even MAP–21 was only 2 years long. 

That is why the administration is putting forward a 6-year bill, 

fully paid for with substantial growth, to provide that certainty as 

well as provide the level investment, where conditions might actually improve. 

Senator MCCASKILL. Well, let me ask this awkward question so 

that we can make sure we don’t forget that we have work to do in 

Jefferson City, as I indicated when I welcomed you. 

Let’s assume that something invades this place called ‘‘common 

sense’’ and we get a multiyear surface transportation bill done that 

will allow the kind of vision and planning that will make these 

34 

projects cost-effective and real to the states. Will Missouri have the 

resources to cost-share? 

Mr. NICHOLS. No, ma’am. It is even worse than that, Madam 

Chairman—no, ma’am. We will not. In our state, Fiscal Year 2017, 

assuming that there is a solution for transportation funding, 

whether it is a continuing resolution or a new surface transportation act at the Federal level, at the existing funding levels we 

will not even be able to match the Federal funds that are coming 

in today. 

So it is a big challenge that we are facing at the state level in 

Missouri, and it is quite common around the country right now. 

Senator MCCASKILL. Well, I hope people in Missouri figure this 

out before the legislators in Jefferson City consider another tax cut. 

Thank you, Mr. Nichols. 

Senator FISCHER. Thank you, Senator McCaskill. 

Senator Wicker? 

STATEMENT OF HON. ROGER F. WICKER, 

U.S. SENATOR FROM MISSISSIPPI 

Senator WICKER. Thank you very much, gentlemen. Appreciate 

your testimony today. 

I have a question about TIGER grants and maybe a way to expand this concept to the state level. And I want to give you an example. 

There were three small counties in southwest Mississippi who 

came together in a project called TRI-Mississippi—Claiborne County, Jefferson, and Franklin County. They submitted a TIGER grant 

application, 2014, to fund the replacement of 22 failing bridges and 

to repair 40 miles of roadway. This grant was awarded to TRI-Mississippi, and through this project we were able to create, we believe, 262 additional jobs in an area that was highly distressed economically. 

So, good news for these three small counties; bad news for the 

counties that submitted equally excellent applications and weren’t 

chosen. In this system, we learn that nearly 6,100 applications 

have been submitted and only 343 receive funds. This represents 

a project award rate of less than 6 percent. 

Last year’s competition alone had applications requesting 15 

times the amount authorized in the program. As one of our witnesses said, the needs are out there, and we are simply not meeting the needs. 

Now, that is why Senator Booker and I have developed a statebased competitive grant program that you might call state-based 

TIGER or a TIGER-esque program for states. We introduced it last 

year; we have reintroduced it again this year in the form of the Innovation in Surface Transportation Act. 

And so I would ask perhaps Mr. Nichols to comment about this 

but also Mr. Rogoff and discuss this concept of a certain portion of 

funds being set aside for competitive, merit-based applications so 

more of these local communities are able to utilize funds in a way 

where they could not possibly submit a match. 

And, Mr. Nichols, I guess we will go with you first. 

Mr. NICHOLS. OK. Madam Chairman, Senator, thank you again 

for the question. 

35 

I will begin with a perspective of at least from AASHTO, which, 

you know, all 50 states, plus Puerto Rico and D.C., and the perspective, obviously a formula-based distribution where the states 

have flexibility on the distribution of Federal funds throughout the 

state, whether it is on the state system, a city or county system of 

highways, and the multimodal aspect of how those funds can be 

used. 

A formula base provides an opportunity for long-range planning. 

And that is utilizing our relationship with our more urban areas 

through the metropolitan planning organization processes and then 

in the rural areas with our regional planning commissions on the 

transportation planning process, that they can look out forward, 

just as we do on the state system, on what are the transportation 

needs on the system, whether it is on the state system or local system, that there is a—and then a prioritization process, which is 

what we do in Missouri through the formula funds that come 

through Missouri. So there is a, I say, a competitive process, but 

it is a needs-based process that we have in our state. 

Now, the TIGER grant component of it—as the Under Secretary 

will mention, Missouri has been, I will say, moderately or modestly 

successful with the TIGER grant program. And we work very hard 

inside that program to be able to capture this grant system that 

is available for states and local systems to use. 

I will mention that the TIGER grant applications are one of the 

few areas where we can take a multimodal approach, the entire 

transportation system, to solve a transportation network of problems in our state. And it has helped us in some areas on some 

projects that we would not be able to use, necessarily, our formulabased funds to do those projects. 

So, with that, I will pass it to Under Secretary—— 

Mr. ROGOFF. Well, thank you, Senator Wicker. 

I would echo what Mr. Nichols said and also echo what you observed, and that is that the demand for TIGER grants is overwhelming compared to the availability of funding, which is why in 

our GROW AMERICA Act we actually more than double available 

funding for TIGER. And even then, we will not come close to meeting demand. 

And, importantly, as Mr. Nichols also pointed out, the TIGER 

program has really allowed us to rifle-shoot some dollars to some 

projects to get them in the ground quickly that are innovative, that 

are multimodal, that gets dollars directly to a local community, 

sometimes bypassing the state DOT, and also to achieve sort of 

unique goals, whether it is ladders of opportunity for people who 

have been disconnected or communities that have been disconnected from the economy or unique innovations. We would like to 

maintain that uniqueness and that innovative aspect of TIGER. 

Now, our increase in funding and your proposal need not compete with one another. I think there is certainly room for both. But 

I think there is value in a Federal program, where we could disseminate best practices. And if Mississippi also wants to mirror 

that with a competitive, innovative program that can go to local 

communities, more the better. 

Senator WICKER. Well, let me just say that the Wicker-Booker 

proposal is really gaining a lot of speed among local and county 

36 

governments. They see it as a way to meet a need that has not 

been answered in a number of years. And the national organizations that represent these local governments, they are collectively 

very excited about this. 

So I hope we can work together. I hope we, because of the needs, 

we can get a bigger pot of money out there for all of us. 

And I think, Madam Chair, we all support innovation and best 

practices, but a lot of these things are—these are just basically, you 

know, bridges that need to be replaced, roads that aren’t sufficient. 

And I don’t know how modernistic we can be about that. The roads 

and infrastructure are falling apart in this country, and local governments don’t have the money to afford these. 

So I will leave it at that. 

I wonder if, since there are only two of us, Madam Chair, if I 

could ask one—— 

Senator FISCHER. Certainly. 

Senator WICKER.—other line—— 

Mr. ROGOFF. Could I just make one just very quick observation, 

Senator? I don’t want to use up your time. 

Senator WICKER. Oh, it is already gone. 

Mr. ROGOFF. OK. 

There are some things—you are right, there are times in TIGER 

grants where we are replacing projects that might be eligible for 

funding with other funding sources. But there are others, especially 

in ports—we do not have a funded alternative grant program for 

ports. And one of the grants we made to Mississippi was to the 

Port of Pascagoula, and that couldn’t have been done through any 

other program that we have. 

So there are some unique aspects for TIGER that really lend 

itself toward not only continuation but expansion of the Federal effort, as well. 

Senator WICKER. Well, when you mention the critical need for 

upgrading our ports and making us competitive internationally, 

you get an ‘‘amen’’ from me on that. 

Dr. Sweatman, let me just ask you about this V2X technology 

and the testimony that you have about that. You mentioned the 

smart corridor in Michigan, and I found this very interesting. 

At what point will this be practical not only on the new expressways but in getting vehicles on the secondary roads and actually 

to people’s businesses and homes? That is my question about something this smart and something this interconnected. 

Mr. SWEATMAN. That is a great question. Thank you very much. 

Clearly, this technology will be deployed in vehicles. It also needs 

to be deployed to a certain level in the infrastructure. So we can 

achieve quite a bit with vehicle-to-vehicle communication, and, as 

I think we are aware, that kind of platform will be provided in vehicles through regulatory action in the future. But we do need to 

make sure that we have the support in the infrastructure. And 

what we are doing in Michigan is finding a business model where 

this makes sense. 

So there is a lot of value to be gained by this kind of communication, not only for safety but for many other aspects, including saving energy and even transactions that can be undertaken from the 

vehicle. 

37 

So, as we move forward, what we are interested in in deploying 

this in Michigan is to create day-one value from this V2X system. 

So we need consumers to be excited about it. We have around 3,000 

consumers in the City of Ann Arbor using this technology right 

now and seeing a lot of benefit. So we are expanding on that, so 

we are going to many thousands. But there are other programs 

around the country, in California, in Texas, in Virginia, and others, 

who are doing a similar program. 

So we think these regional deployments are very important to 

show the benefits, but we definitely do need not only the technology in the vehicles but in the infrastructure. And we believe 

that that business model will be apparent so that this can be done. 

There will be an incentive for this deployment to take place. 

Senator FISCHER. Thank you, Senator Wicker. 

Senator Blumenthal? 

STATEMENT OF HON. RICHARD BLUMENTHAL, 

U.S. SENATOR FROM CONNECTICUT 

Senator BLUMENTHAL. Thank you, Madam Chair. 

Thank you all for being here today on this very important topic 

of safety, performance-based, prescriptive measures to achieve it. 

I think there has been some discussion of the goal of reducing 

truck fatalities and injuries and crashes to help with safety on our 

roads, and an important factor in reducing crashes and fatalities 

is to help minimize fatigue in the trucking industry through hoursof-service regulations, which are prescriptive, not just performancebased. 

Last year’s appropriations bills stopped enforcement of two important provisions of the hours-of-service rule until the Department 

of Transportation completes a study which the inspector general 

will review. 

And my questions for Mr. Rogoff are: Number one, what is the 

status of that study? And, number two, has the inspector general 

reviewed your plan for the study? 

Mr. ROGOFF. The study is currently ongoing, Senator 

Blumenthal. And, indeed, the inspector general has reviewed the 

study and has reported out their findings to us. Based on our briefing, they saw no problems with our methodology. I believe they 

also will be briefing the Committee in short order, if they have not 

already. 

But we obviously thought the provision in last year’s appropriations bill was misguided, but we are following the strictures of the 

law to make sure that we fulfill the statutory responsibility to 

bring a fresh look to this question. 

Senator BLUMENTHAL. I joined you in the view that the provision 

was unfortunate, and ‘‘misguided,’’ I think, is probably a good word 

for it. I am hoping that the department is taking steps to ensure 

that the drivers who are selected for the study are sufficiently representative or the sample sufficiently accurate to produce results 

that are statistically significant. 

Mr. ROGOFF. We are working hard to do so, as is the contractor. 

We do have a challenge, I should tell you, because the number 

of drivers that are actually likely to be subject to the restart requirements is a very small population. It is probably no more than 

38 

15 percent of the drivers that are out there. These are drivers that 

are driving more than 60 hours in 7 days or more than 70 hours 

in 8 days. And in order to find a sample where we could do an adequate comparison will be a challenge. 

But our contractor is on it, and we are seeking to help them. And 

we are getting help from trucking companies around the country 

that are willing to participate. 

Senator BLUMENTHAL. How soon do you anticipate the study will 

be done? 

Mr. ROGOFF. The goal is to get it done by the end of the year. 

But, as with all of these things, we are going to get it right before 

we get it out, so I wouldn’t want to be pinned to a timeframe. But 

please know our goal is to get it out before the end of the year. 

Senator BLUMENTHAL. Well, thank you for your work on this 

issue. And please thank Secretary Foxx for his attention to all of 

the safety issues that I think are so important to the confidence 

and trust of drivers but also riders of the rail, where safety and reliability is a continuing challenge and where, in my view, the Federal Railroad Administration must issue rules and regulations that 

have been recommended by other agencies, as you well know. And 

I am hopeful that those regulations will be issued, because the law 

mandates they be issued. 

And we can debate prescription, performance. In some ways, the 

semantics matter very little to the average American passenger on 

our rails or driver or rider on our roads, because the prescriptions—I don’t know whether you would agree—for mandated technologies like seatbelts and airbags and electronic stability control, 

roof crush resistance, side-impact protections, all are saving lives. 

Whether you want to call them performance-based or prescriptions, 

safety demands that the government intervene and mandate measures that will save lives. 

Mr. ROGOFF. I think those are very good examples, Senator 

Blumenthal, because it points up the fact that it is not necessarily 

an either/or. We have what are sometimes called parametric rules, 

which are kind of a combination of prescription and performance. 

You used the example of seatbelts and airbags and roof crush 

standards. That is true, we have those more prescriptive standards, 

but we also have just an overall crash-worthiness standard or a 

rollover standard, something Dr. Graham worked on when he was 

at OIRA, that is performance-based. 

So it is a combination of—we have required three-point seatbelts 

for decades, but we still leave to the automobile manufacturer the 

choice of how they want to design their vehicle to meet the crashworthiness standard. 

Senator BLUMENTHAL. Thank you. 

My time has expired, but I want to thank every one of you for 

your being here today and for the excellent work that you are doing 

on this cause. 

Thank you, Madam Chair. 

Senator FISCHER. Thank you, Senator Blumenthal. 

Senator Klobuchar? 

39 

STATEMENT OF HON. AMY KLOBUCHAR, 

U.S. SENATOR FROM MINNESOTA 

Senator KLOBUCHAR. Thank you so much, Madam Chair. 

Thank you to all of you for being here. 

I guess I will start with you, Mr. Rogoff, who has come to our 

state many times. Thank you. And I know you have been to our 

metropolitan area for some really good projects that the department has helped fund. 

I want to just ask you a little bit about another part of our state; 

it is the rural area. About 27 percent of people in our state live in 

rural areas, but almost 70 percent of the motor vehicle deaths 

occur in rural areas. 

And that is why I have a bill with Senator Sessions to have the 

department study high-risk rural road best practices. It was included in MAP–21. And the report identified challenges that local 

governments face when planning for and implementing strategies 

to improve safety on rural roads. 

Mr. Rogoff, as we look to build on this report, what are your 

thoughts on what we should be doing to make rural roads safer? 

Mr. ROGOFF. Well, thank you for the question, Senator. 

We actually have an initiative and are very focused on just that 

point, because those figures in Minnesota are mirrored in other 

states across the country, namely that some of the highest-risk 

roads are the least traveled but they are also sometimes the least 

attended to when it comes to engineering safety improvements. 

Mr. Nichols in Missouri lives this and breathes this every day. 

Senator KLOBUCHAR. I saw him nodding his head in a very nice, 

Midwestern—— 

Mr. ROGOFF. And we actually, in our GROW AMERICA Act, 

quite deliberately boost funding specifically to states to tackle that 

rural road problem. 

Certainly, even at the increased funding levels in our bill, it is 

not enough to complete the problem. Some of the issues are in the 

area of technical assistance because, as was pointed out earlier by 

Senator McCaskill, some of these most dangerous roads are county 

roads. But that doesn’t make them any less fatal or any less of a 

concern to all of us. 

Senator KLOBUCHAR. Exactly. 

Mr. ROGOFF. So we need to kind of pierce through that and make 

sure they are attended to. 

Senator KLOBUCHAR. Then the other thing I have been working 

on, which is a rural issue, also a metro issue, but that is the distracted-driving issue, something that Secretary LaHood made a 

priority and I know that Secretary Foxx has continued. 

And right now, the way this works, too few states are receiving 

the funding. In 2014, and this is our grant programs, only one state 

received the funding, the state of Connecticut. 

Mr. ROGOFF. That is right. 

Senator KLOBUCHAR. They are smaller than our states, geographically; that is all I will say. And we think it is important that 

we be able to have those funds go out, as we are seeing these extraordinary number of deaths from distracted driving. 

And Senator Hoeven and I have introduced a bill which would 

make it easier for some of the grant funding, and I am hoping that 

40 

we can include that. And I know the agency can’t do anything 

about it until we include that change. But I am really making a 

pitch here that we put that in the transportation bill. And I am 

hoping Senator Thune and Senator Nelson, staff here, will listen, 

as well as Senator Fischer, so we can get that done. And just a 

point there. 

Mr. ROGOFF. Well, we applaud your effort. 

We actually have in the GROW AMERICA Act and will again 

when we submit it shortly a provision to try to free up those dollars 

and put them to work in a broader number of states. We sort of 

establish a two-tier system, where part of that money will go to the 

states that have made adequate progress to date, while still leaving 

funding for an incentive for states to do even more. 

Senator KLOBUCHAR. Very good. 

Mr. ROGOFF. But you are right, the challenge of it only going to 

one state resulted from the new requirements that were put into 

MAP–21, and it did freeze up a lot of money, such that only one 

state qualified. 

Senator KLOBUCHAR. Yes. We will just not tell Senator 

Blumenthal that we are bitching a little bit. 

Mr. ROGOFF. Oh, you know. He is not in the room. 

Senator KLOBUCHAR. Exactly. Well, I am sure they will still qualify, because we want to extend it. 

I wanted to last ask you about the Recreational Trails Program. 

I worked hard with several of my colleagues to ensure that the Recreational Trails Program was preserved in MAP–21. As you know, 

it is the foundation for state trail systems across the country. It 

provides support to states to construct and maintain thousands of 

miles of trails for both non-motorized and motorized users. And it 

is actually a nice coalition of both bicycle, cross-country skiers, people who have ATVs and all kinds of motorized vehicles as well, 

snowmobiles. 

So I want to get your thoughts on the RTP program and its importance to trail users. Obviously, that is something else we are 

going to be working on in the transportation bill. 

Mr. ROGOFF. We do support the extension of the Rec Trails Program. And, importantly, we also have sought additional funds in 

our TIGER program, through which we have funded a great many 

trails. 

Trail use continues to rise. 

Senator KLOBUCHAR. Yes. 

Mr. ROGOFF. Demand continues to rise. And this is not an area 

where—I think it used to be highly controversial in—— 

Senator KLOBUCHAR. Yes. I remember those days. 

Mr. ROGOFF. And I think, hopefully, we are turning a corner 

there, where states are seeing the benefit for the mobility of all 

their community members. 

Senator KLOBUCHAR. Right. And I also think that the groups 

have found a way to work together on this—— 

Mr. ROGOFF. That is right. 

Senator KLOBUCHAR.—Federal program that has been really 

helpful to show that all people can use—motorized, non-motorized—different kinds of trails for different reasons. And they have 

41 

been advocating together, and I think that has made a big difference, as well. 

Mr. ROGOFF. Well, if we are going to get reauthorization, we are 

going to need every community behind getting something done. 

Senator KLOBUCHAR. Right. 

All right. Thank you very much. 

Thank you, all of you. 

Senator FISCHER. Thank you, Senator Klobuchar. 

I am going to ask another round of questions to give any of my 

colleagues that are trying to get to this hearing an opportunity to 

do so within the next 5 minutes. 

So I would begin with Dr. Graham. 

In your testimony, you mentioned that prescriptive regulations 

encourage rent-seeking activities. Can you elaborate on those comments and explain how the performance targets alleviate that rent 

seeking? And, also, if we alleviate the rent seeking, does it encourage some innovation, as well? 

Mr. GRAHAM. Yes, it does. It is a good question, Senator Fischer. 

A performance standard is typically specified in numeric terms 

that are objective so that if anybody has a technology that they can 

demonstrate meets that standard they have an equivalent opportunity to make that case. 

The difference with the prescriptive standard is you have a tendency to want to pick one of those and then write it into the regulation. So the lobbyists who are behind that, you know, they are trying to persuade that regulator to mandate their technology. And 

that is a temptation that exists with prescriptive standards that is 

lessened with performance standards. 

Senator FISCHER. And in your experience as an administrator, 

what are some of the elements of the performance standards that 

you incorporate into the regulatory approach, particularly for 

transportation regulations? And where can we improve on those 

performance targets, to be able to incorporate those into regulations? 

Mr. GRAHAM. Well, let’s talk first about existing regulations. 

Ideally, I would like to live in a world where all of these existing 

prescriptive standards would be rewritten as performance standards, but that is not going to happen in our lifetimes because there 

are lots of those regulations out there. So you need kind of a simpler, more general fix. 

And that is what I had proposed with this idea of just—Congress 

could just lay out an equivalency clause that applies to all these 

existing rules, and then it allows a regulated company to propose 

an alternative compliance path. So you don’t have to rewrite all the 

prescriptive standards; you just allow them to make that proposal. 

But the condition is they have to be able to demonstrate that they 

can achieve equivalent safety to what the current prescriptive 

standard provides. 

You are reminding me that I wanted to make a comment on the 

little analogy that was made with airbags and seatbelts about prescriptive standards. Not all airbags are equally effective, so you 

would like to have some performance requirements on airbags. 

And, in fact, we have those. The performance standard that the 

Federal Government adopts for crash-worthiness protection is a nuVerDate Nov 24 2008 11:39 Apr 27, 2016 Jkt 075679 PO 00000 Frm 00045 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\99914.TXT JACKIE
42 

meric standard that measures deceleration of the head in a crash. 

And airbag systems have to meet that performance standard. 

So even when people refer to specific technologies, safety technologies, and say these are good things, a lot of them are there because there are performance requirements on those technologies. 

Senator FISCHER. Thank you. 

And how would you go about—if you change it and allow companies to use performance-based, which then they have to meet certain guidelines along that, be able to prove that, how would you 

have the DOT respond? And would you put a time limit on the 

DOT to respond to companies that are trying to move into the 

arena of performance-based? 

Mr. GRAHAM. I think you have to look at the history of the particular agency on how well they are able to meet their timeframes 

currently. And if you have an agency that has a pattern of not 

meeting those timeframes, then I would, yes, be inclined to do that. 

But I think if the agency has a good track record of meeting 

prompt activity, then I don’t even think you necessarily have to put 

in the statute the timeframe. 

But we have to keep in mind that the burden of analysis and 

work to develop these alternative compliance schemes and to demonstrate equivalent safety, that burden would be on the companies. 

So they have a lot more work to do in this regard than the regulator does. 

Senator FISCHER. OK. Thank you. 

And, Mr. Nichols, if I could finish with you, in the written statement that you provided, you noted that fatalities on the Missouri 

highways and roads have decreased from 1,257 in 2005 to 766 in 

2014. 

Can you explain how performance-based measures within your 

department have contributed to those safety improvements that 

you have seen over the past 10 years? And I would like to congratulate you on those numbers. 

Mr. NICHOLS. Thank you, Madam Chairman. 

It begins with, first of all, identifying that that is an area, obviously, that we are going to—as we go through an enterprise risk 

management system, safety is really low-hanging fruit. And what 

we identified, again, is that that is an area where we are going as 

a state to take a systems approach as opposed to a high-crash-location approach, which historically state DOTs and traffic engineers 

have done for many, many years. 

You look at an intersection that has lots and lots of crashes at 

it but very low serious injury and low fatalities, yet on—and we 

were just talking about rural roads. And, again, both of our states 

have many, many miles of those. And we were looking at, where 

can we make an investment of the dollars that we have that will 

make a difference on the system, that will reduce fatalities and disabling injuries? 

And we began with an approach of looking at the roads that 

carry the most traffic. In Missouri, which, again, is a microcosm of 

many, many states, about 80 percent of our traffic drives on 20 percent of our roads—the 80–20 rule. Again, many states fall in that. 

And what we said is, are we doing everything we can do, with the 

43 

limited resources we have, to reduce and eliminate the types of fatalities that are occurring on these types of roads? 

For example, on our interstate systems where we do not have a 

protected median, where we have a grass median, which much of 

the rural interstate has, we saw that we were having an alarming 

rate of fatalities with crossover-median fatalities. And we went in 

and put in guard cable. And there was a lot of debate about whether guard cable, at that time, was an effective tool and product to 

eliminate fatalities. Well, I can tell you that it has been a wonderful product that has—hasn’t completely eliminated, but it has reduced crossover fatalities on our interstate systems tremendously. 

The other areas are—it is lane departures issues, like putting 

what we call a rumble stripe, thing like that. It is an annoying 

product, but it is on the edge of the road, and you drive over to the 

edge and it alerts you. And it is that distracted-driving component. 

Without having the issues associated with the autonomous vehicle components in right now, it allows us to do some things on the 

existing corridors that take care of those specific system of roads 

that has reduced fatalities. And there are a couple of examples 

there. 

The challenge that we have, we are not making much progress 

now. And, as I said, we are at 766 fatalities last year in our state, 

and that number is hovering at about that level. Our challenge is 

it is going to that 80 percent of the roads that carry 20 percent of 

the traffic where we need to put similar-type features—shoulders 

on rural two-lane roads, more guardrail and guard cable on rural 

two-lane roads—and do things like that, widen the roads out. And 

those are the kind of things that we know systematically we need 

to do; the issue is we don’t have the revenue to do that. 

Senator FISCHER. How wide are your shoulders? Are they 

AASHTO standards, or do you have stricter standards in Missouri? 

Mr. NICHOLS. No, they are AASHTO standards, ma’am. 

Senator FISCHER. OK. Thank you. 

Thank you all, gentlemen. I appreciate you being here today. It 

has been a very informative hearing. 

The hearing record will remain open for 2 weeks. During this 

time, Senators are asked to submit any questions for the record, 

and, upon receipt, the witnesses are requested to submit their written answers to the Committee as soon as possible. 

Thank you again. I appreciate all your information. 

We are adjourned. 

[Whereupon, at 11:24 a.m., the hearing was adjourned.] 

(45) 

A P P E N D I X 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. JOHN THUNE TO

HON. PETER M. ROGOFF

Question 1. To what extent does current statute require the Department of Transportation to mandate prescriptive standards when the Department would otherwise 

find merit in issuing equivalent performance standards? Across the Department, are 

there any cases in which an equivalency clause would produce a beneficial outcome? 

Answer. Equivalency approaches authorize an agency to adopt alternative compliance mechanisms for a regulated entity, if the entity shows that equivalent safety 

protection would be accomplished by the alternative approach. The Department has 

found that use of alternate means of meeting standards is sometimes useful. Such 

a clause can be included as a provision of regulatory text, unless such a clause is 

specifically barred by statute. However, where statutes prescribe a design standard, 

agencies can authorize approaches that maintain an equivalent level of safety only 

where Congress has explicitly authorized such an approach in the statute. The Department has seen the benefits of equivalency approaches in the Federal Railroad 

Administration’s regulations for braking technology and the National Highway Traffic Safety Administration’s theft reduction measures. 

Some DOT regulations allow regulated entities to submit petitions to operate outside the regulations. The Pipeline and Hazardous Materials Administration 

(PHMSA) special permits process sets forth a process to authorize alternative requirements, or variances, to the requirements in the Hazardous Materials Regulations (HMR). The PHMSA is authorized in statute to issue such variances in a way 

that achieves a safety level that is at least equal to the safety level required under 

Federal hazmat law or is consistent with the public interest if a required safety 

level does not exist. The PHMSA also uses approvals, or written consent, from a 

designated official to perform a function that requires prior consent under the HMR. 

The Department also uses performance-based safety approaches to achieve safety 

outcomes, and industry has shown progress in voluntarily implementing performance-based safety standards. For example, the Federal Aviation Administration 

(FAA) has used performance as the basis of analysis, and improvements have resulted in the near-elimination of fatalities in our commercial aviation fleet. Performance testing has resulted in dozens of specific safety enhancements in our automobile fleet, saving thousands of lives. 

Question 2. If Congress were to consider an equivalency clause—perhaps in limited instances—as part of the surface transportation reauthorization bill, or any 

other transportation bill, what do you view as the primary advantages and disadvantages? What potential challenges would arise from implementation? 

Answer. As noted above, alternative compliance mechanisms can be included in 

regulation unless explicitly prohibited by statute. If Congress is prescriptive in its 

statutory language, a provision in statute that also allows the agency to evaluate 

alternative methods of compliance from the public could be useful. 

The advantage of an equivalency approach is flexibility. Such an approach would 

allow for innovation and allow for more rapid adoption of compliance methods as 

new technologies emerge. 

Performance-based approaches that specify performance outcomes may also have 

advantages. Such an approach provides flexibility to the regulated entity to achieve 

the performance outcome in the most effective, efficient, and cost-effective way. For 

example, FAA has adopted equipage standards and safety management systems 

that use a performance basis to achieve outcomes. A performance approach may promote innovation because only a final outcome is mandated, rather than a specific 

design, practice, or technological solution. Performance standards can also more easily be tailored to local circumstances. 

However, a prescriptive approach may be appropriate in some instances. For example, industry and consumers can more easily understand and comply with a specific standard, especially small entities that may find compliance with an explicit 

46 

standard to be less complex and more affordable. Additionally, a specific standard 

may be more easily enforced compared to a performance standard. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. RICHARD BLUMENTHAL TO

HON. PETER M. ROGOFF

Question 1. A critical component of any performance-based system is data collection. I’ve been troubled in recent months as I’ve found DOT lacks data on several 

issues. For example, after a tragedy involving a rental truck in Connecticut in 2011 

that killed a college student, I had language put in the most recent surface transportation bill, MAP–21, that required a study of rental truck safety. DOT returned 

that study to me in July 2014 and informed me there just isn’t enough data out 

there to know whether rental trucks are safer than other rental vehicles or more 

dangerous. Likewise, I’ve sought information about guardrail end terminals on our 

Nation’s roads and highways. I’ve been told that there just isn’t enough data, that 

there are insufficient guidelines for data collection, and that databases are incomprehensive. And so I’m now demanding that DOT undertake a real analysis of the 

devices on our roads and gather this data. I’m alarmed we don’t have that data already. What efforts is DOT taking to ensure we have better data collection efforts? 

Answer. The Department strongly believes in the effectiveness of performancebased safety approaches. An essential component of performance-based safety oversight is the ability to base decisions on objective and accurate data. As such, the 

DOT Operating Administrations responsible for safety oversight have implemented 

data collection systems and have continuously sought to expand and improve upon 

these systems. 

However, DOT is also frustrated by the lack of data in certain areas. In many 

instances, DOT is dependent upon users, states, and private industry to supply accurate safety data. All performance-based safety regulations must carefully consider 

the costs associated with implementing enhanced data collection and reporting requirements. 

With respect to rental truck safety data, the Federal Motor Carrier Safety Administration (FMCSA) maintains the Motor Carrier Management Information Systems 

(MCMIS) database which contains information on those large truck crashes which 

are required to be reported to the Agency. The FMCSA relies on our State partners 

to report these crash data. The reported crash data contains essential, but limited, 

information about each incident. A detailed description of the data available to 

FMCSA for the analysis of rental truck safety performance was provided in the 

March 2014 report to Congress titled ‘‘The Rental Truck Safety Study Report to 

Congress.’’ 

In addition, FMCSA has implemented other data systems to monitor safety. The 

Compliance, Safety, Accountability (CSA) initiative helps improve truck safety by 

collecting carrier data and targeting companies for intervention based on that data. 

Since implementation in 2010, the Safety Measurement System (SMS) has been enhanced several times. The enhancements were a continuation of the Agency’s efforts 

to provide law enforcement, the motor carrier industry, and other safety stakeholders with more comprehensive, informative, and regularly updated safety performance data. 

The FMCSA will also be providing notice and seeking comments on proposed enhancements to the Agency’s SMS methodology. Consistent with its prior announcements, the Agency is proposing changes to the SMS that are the direct result of 

feedback from stakeholders and the Agency’s ongoing continuous improvement efforts. The Agency is considering several changes in this notice and is asking for 

comment on these issues and other possible areas for consideration. This set of enhancements would include changes to some of the SMS Intervention Thresholds to 

better reflect the Behavior Analysis and Safety Improvement Categories’ (BASICs) 

correlation to crash risk, other changes to the Hazardous Materials (HM) Compliance BASIC, reclassifying violations for operating while out-of-service (OOS) to the 

Unsafe Driving BASIC, and adjustments to the Utilization Factor (UF). The FMCSA 

will provide a preview of the proposed enhancements allowing motor carriers to see 

their own data, enforcement to see the data, and an opportunity for all to comment 

prior to implementation. 

With respect to guard rails, the Federal Highway Administration (FHWA), 

through its Roadway Safety Data Program, provides guidance, technical assistance, 

and informational resources to encourage and assist State and local agencies to improve the roadway inventory component of their safety data systems. The FHWA 

developed the Model Inventory of Roadway Elements (MIRE) which provides guidance on data elements that should be considered for collection on all public roads. 

47 

Also, FHWA developed an informational guide on how to collect those data, how to 

manage and assure the quality of data, and how to structure information systems 

containing those data. The FHWA provides technical assistance, including a Roadway Data Improvement Program that assists States in a thorough review of their 

roadway inventory data collection, management, and analysis efforts and provides 

recommendations on how to review their data systems. Information pertaining to 

roadway safety hardware is an important component of a roadway inventory data 

system, and these are some of the ways we are working with state partners to make 

it better. 

Additionally, the National Academies’ National Research Council has convened a 

committee to look at the in-service performance of guardrail end terminals. The 

committee will conduct exploratory work to look at whether the data is available 

in sufficient quantity and quality to allow for a meaningful study. Based on the results from the exploratory work, the Committee will identify appropriate next steps 

for either gathering data or advising states how best to conduct in-service evaluations of guardrail end treatments. 

Finally, DOT and FHWA have evaluated FHWA’s internal process for determining whether roadside safety hardware is eligible for Federal-aid reimbursement. 

This evaluation has identified several changes that will be made in the near term. 

Additionally, we are engaging Volpe National Transportation Systems Center to 

conduct an independent review of the entire process by which roadside safety hardware is developed and evaluated. 

Question 2. While performance-based safety systems may be interesting to discuss, at the end of the day, we still need rules. The Rail Safety Improvement Act 

of 2008 required FRA to issue regulations ensuring that each passenger railroad 

(like Amtrak), commuter railroad (like Metro-North), Class I railroad, and any railroad ‘‘that has inadequate safety performance (as determined by the secretary)’’ develop and implement a risk reduction program that ‘‘systematically evaluates railroad safety risks on its system and manages those risks in order to reduce the numbers and rates of railroad accidents, incidents, injuries, and fatalities.’’ 

This would be a performance-based rule in many respects—and it ultimately 

should address many aspects of fatigue, a critical issue made apparent by crashes 

on Metro-North in recent years. The 2008 rail safety bill mandated that these regulations be issued by October 2012. FRA has clearly missed the deadline by almost 

2.5 years. The legislation left open the opportunity for FRA to issue regulations in 

several pieces. FRA has thus broken the mandate into several components: FRA 

issued an NPRM governing risk mitigation and technology for passenger and commuter railroads in September 2012, but the agency has yet to issue a final rule. 

FRA issued an NPRM regarding risk mitigation and technology implementation for 

Class I railroads just weeks ago in February 2015—and is likely years away from 

issuing a final rule. FRA is likely even many more years away from issuing a rule 

on fatigue management as to either passenger and commuter railroads or freight 

railroads. What is behind the backlog and delay in putting forward the risk reduction rulemakings? 

Answer. The Federal Railroad Administration (FRA) continues to work aggressively to complete its regulatory workload, placing a priority on rulemakings that 

will most effectively advance safety, particularly those required by Congressional 

mandate. 

In the rulemaking process, FRA has to strike a balance between speed and quality. ‘‘Quality’’ includes adherence to demanding procedural and substantive legal requirements. All three branches of the Federal Government—Congress, the courts, 

and the Executive Branch—have established certain mandatory procedures and substantive requirements for the rulemaking process. With few exceptions, before FRA 

is permitted to issue a final rule, there must be public notice of the proposal and 

an opportunity for public comment; a reasonable response to any public comments; 

an articulated, rational basis for the rule; and consistency of the rule with any applicable laws. In addition, FRA must identify, analyze, and weigh the costs and benefits of proposed rules and final rules. This evaluation can be very complex, but provides critical information to decision makers, reviewers, and the public. 

Additionally, FRA often utilizes the Railroad Safety Advisory Committee (RSAC) 

process, especially for difficult issues. This process ensures the highest level of 

transparency and provides the highest level of public input. A chartered advisory 

committee under the Federal Advisory Committee Act, RSAC includes representatives of stakeholders throughout the railroad industry (rail labor, rail management, 

rail suppliers, rail passengers, State rail safety programs, and other organizations). 

This ensures that FRA hears a wide range of opinions early in the rulemaking process so proposals are appropriately vetted early, clarified, and communicated. The 

RSAC process saves time—especially at the end of the process—by making the costVerDate Nov 24 2008 11:39 Apr 27, 2016 Jkt 075679 PO 00000 Frm 00051 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\99914.TXT JACKIE
48 

benefit analysis more accurate, minimizing petitions for reconsideration, and creating a rule the regulated community understands. 

The FRA has utilized its limited resources to advance and address the safety 

needs of the country in as expeditious a manner as possible. Importantly, the complex nature of the administrative review process for rulemaking documents means 

that widening one part of the pipeline (e.g., by adding resources) is not enough to 

expedite issuance of a rule if the rest of the pipeline remains narrow; the delay simply occurs at a different stage of the process. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. JOHN THUNE TO

JOHN D. GRAHAM, PH.D. 

Question 1. Equivalency Clause. During the hearing, you suggested that all prescriptive standards should be amended to permit performance standards achieving 

at least an equivalent level of safety. For instances in which regulatory agencies 

cannot imagine a performance standard, you suggested establish processes by which 

to receive and evaluate evidence and ideas submitted by regulated entities. Within 

current statute, what is the strongest example of an equivalency clause? How might 

Congress design such a clause for transportation safety? 

Answer. I have not studied all of the equivalency clauses now in statute and thus 

could not pinpoint the strongest one. For a useful illustration of the issues, consider 

the equivalency clause in the National Fire Protection Association standards. A good 

discussion is provided by Charles Fialkowski, How to Invoke the Equivalency 

Clause in NFPA Standards. August 9, 2013, https://blogs.siemens.com/burnerman 

agementsystems/stories/1266/. 

Question 2. In your experience, which agencies have the best processes for considering regulatory proposals and associated evidence from regulated entities? What 

makes those processes effective? 

Answer. I would say the U.S. Food and Drug Administration has the best developed system for evaluating the evidence and regulatory proposals made by regulated 

businesses (typically pharmaceutical manufacturers and medical device firms). 

There are several factors that contribute to the success of FDA’s evidence-based regulatory process: the industry’s sustain investments in regulatory science, including 

contributions to academic programs that train personnel that can be hired by regulators, industry and consulting firms; the agency’s scientific culture and commitment to third party peer review of the agency’s key scientific assumptions/determinations; and the agency’s knowledge that the industry can pursue litigation 

against the agency if the agency does not make a decision based on the best available evidence. 

Æ 

49 

This page intentionally left blank. 

50 

This page intentionally left blank. 

51 

This page intentionally left blank.