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Campaigning for safer, cleaner motor vehicles
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Hearing on the Office of Motor Carriers
INTRODUCTION Good morning. My name is Joan Claybrook. I am President of Public Citizen and Consumer Co-Chair of the Program Committee of Advocates for Highway and Auto Safety (Advocates). Advocates is a unique coalition of consumer, health,
Today I will discuss the need for this Congress to seriously address the unnecessary and preventable carnage on our highways that result from large truck and bus crashes. More specifically, the Office of Motor Carriers (OMC) has failed in its assigned role to prevent this carnage, and action must be taken now to save lives. A RISING TOLL OF DEATHS AND INJURIES FROM LARGE TRUCK CRASHES Mr. Chairman, we are here today because thousands of Americans have needlessly been killed and injured over the past decade and more due to the chronic failure of the Office of Motor Carriers (OMC) to carry out its statutory responsibilities to protect the travelling public. Fatalities from large truck crashes (greater than 10,000 pounds gross vehicle weight) have increased about 10 percent from 1995 through 1997, up from 4,918 deaths in 1995 to 5,355 deaths in 1997, an increase of almost 450 lives lost in just three years. Also, the fatal crash rate for large trucks is 2.5 deaths per 100 million vehicle miles
Large trucks are still highly overinvolved in severe and fatal crashes. Current figures from the U.S. Department of Transportation's (DOT) Fatal Analysis Reporting System (FARS) show that, although large trucks are only three percent of the national vehicle fleet, they are involved in 13 percent of all passenger vehicle occupant deaths. Even more startling is the fact that, although a very small portion of the traffic stream, 22 percent of all passenger vehicle occupant deaths in multiple-vehicle crashes involve large trucks. And when large trucks collide with these smaller vehicles, 98 percent of the people who die are the occupants of the cars and light trucks. There are apologists for the status quo, however. In fact, there are those who argue that, because the fatal crash rate of big trucks has improved somewhat over the past several years, current safety conditions for commercial vehicles are good and getting better. We reject efforts to disguise the facts, just as the U.S. General Accounting Office (GAO) rejected these rationalizations in its testimony on two occasions over the past month. Appeals to vehicle miles travelled fatal crash rates cannot mask the increase in horrifying losses this nation is suffering on our roads and streets. Here are the facts: more crashes are happening every year with
These kinds of losses are simply intolerable. As the GAO stressed most recently in its March 17 testimony before this Subcommittee, if the current rate of increased deaths each year continues unabated, we could suffer an additional 450 fatalities in 1999. Extending the forecast into the new millennium, this means 6,000 to 7,000 deaths each year in the first few years of the next century. THE OFFICE OF MOTOR CARRIERS HAS FAILED TO MEET ITS STATUTORY RESPONSIBILITIES It is clear from these statistics and from the evidence compiled by Advocates over the years, by the GAO, by the U.S. Department of Transportation's Office of the Inspector General, and in the mostly unfulfilled recommendations of the National Transportation Safety Board (NTSB), that OMC has not fulfilled its regulatory and enforcement responsibilities to preserve and enhance the safety both of motor carriers and of the public who share the roads with large trucks and buses. Advocates has prepared detailed listings of both the enforcement and regulatory failings of OMC which we are submitting today for the record
This documented record of failures is a highly discouraging and even tragic story of an agency which has increasingly abandoned a vigorous enforcement role in favor of misplaced educational efforts, nominal or excused penalties, and agreements with industry to avoid the use of precise electronic data that would verify compliance with major Federal Motor Carrier Safety Regulations (FMCSR). These regulatory and enforcement failures also portray an agency which has repeatedly offered rulemaking proposals geared primarily towards enhancing trucking industry productivity rather than advancing highway safety,
As we document for you in our additional submissions for the hearing record, OMC has reduced critically important Compliance Reviews (CR) over the past several years, tied the hands of its investigators by weakening the scope and detail of the carrier records that should be accessed to discover violations and justify sanctions, and undermined the roadside inspection program by reducing Level 1 full evaluations in favor of perfunctory surveys of driver and vehicle safety adequacy. OMC has also failed to carry out a statutory requirement to rate all motor carriers and has repeatedly attempted to weaken the rating scheme so that carriers formerly rated as Unsatisfactory or Conditional would be given full Satisfactory ratings. Further, OMC has recently tried to undermine its statutory responsibility by distorting the rating system so that carriers would be either
OMC compounded these rating abuses by concealing its rating methodology, an action which resulted in litigation against the agency for using a system of secret law. Following this, the agency adopted a new safety rating methodology, SafeStat, which, however, is plagued with inadequacies because of, among other things, the different weights assigned to different violations. The
OMC's safety mission has been further compromised operation by granting exemptions and waivers to basic safety standards in such areas as driver hours of service records and minimum medical and physical qualifications, exceptions which often were awarded to motor carriers without public notice and comment. Even more frightening is the approval of these regulatory exceptions without knowing their safety consequences and without plans to control their dangerous potential -- these waivers, exemptions, and pilot programs clearly are conceived and conducted as on-road experiments with public safety. To a considerable extent, these FHWA regulatory exceptions compound the problem of numerous statutory exemptions from safety regulations enacted by Congress over the past 20 years, including hours of service exceptions to special trucking interests and
THE OFFICE OF MOTOR CARRIERS HAS UNDERMINED SAFETY REGULATIONS THROUGH INACTION AND DELAY While OMC systematically undermined its enforcement efforts and roadside inspection program, and increasingly accorded exemptions to industry from the FMCSR, it also disregarded or reinterpreted explicit statutory direction to conduct important safety rulemakings within a prescribed calendar. In other instances, OMC failed to conduct timely rulemaking on its own initiative to parallel the benefits of major new safety standards issued by the National Highway Traffic Safety Administration (NHTSA) for new commercial vehicles with identical requirements for in-service trucks, tractors, trailers, and buses. As I mentioned earlier, we have documented these regulatory abuses in a detailed list for your review. Let me pause here to give you a few examples. Explicit Congressional instruction to conduct rulemaking and issue reports on entry-level commercial driver training standards, to adopt regulations for advanced driving training for the operation of Longer Combination Vehicles (LCVs), and to implement a nationally uniform system of permits for motor carrier transport of hazardous materials (hazmat) -- all have had their timetables ignored and are several years overdue for completion. OMC's stance on the uniform hazmat permit system, a crucially important safety issue, is even more disturbing. OMC has interpreted the statute as allowing it not to put such a permit system into operation. OMC has also argued that it regards such a permit system as not cost-beneficial and it has issued repeated notices in the Federal Register clearly intended as a delaying tactic to avoid complying with a Congressional mandate. With regard to NHTSA's commercial vehicle safety standards, OMC took nearly three and one-half years to duplicate NHTSA's commercial vehicle antilock braking standard as an in-service requirement for trucks, tractors, trailers, and buses. Similarly, NHTSA acted in January 1996 to require new truck trailer rear impact guards, but OMC did not issue a proposal to require continuing maintenance of these newer, safer guards until mid-1998 and no final rule has yet been issued. NHTSA also issued a final rule back in 1992 requiring enhanced trailer conspicuity through the use of uniform supplementary reflective markings, but OMC did not issue a proposal for existing trailers until June 1998, substantially weakened the NHTSA rule, and has not yet issued a final rule. NHTSA also acted in 1995 to extend the benefits of uniform conspicuity enhancement to truck tractors, but no comparable provision has yet been issued by OMC or even a proposal tendered for public comment. I must emphasize that these cases of delay, taken in the aggregate, have serious human consequences. OMC's procrastination has denied several years of safety benefits to the American people that could have prevented thousands of crashes and saved many hundreds of lives or reduced serious injuries. OMC's rulemaking program is fatally flawed in several major ways. OMC repeatedly issues proposed rules and adopts final rules without an adequate basis in the rulemaking record. One version of this failure to justify regulatory changes is the adoption of "interim final rules" without prior public notice and comment. Another approach is simply to issue a proposed rule or promulgate a new regulation or amendment without any basis, including a lack of scientific justification. For example, OMC proposed in 1992 to raise substantially commercial driver hours of service on-duty and driving time limits and to reduce driver off-duty time without any scientific basis or assessment of the ensuing safety effects. OMC was prepared to allow carriers to force drivers to operate their rigs for more than 100 hours a week and to begin a new 100-hour driving week after only a single 24-hour layover. Although safety rulemaking has been undermined in the several ways we have just reviewed, OMC has also proceeded with a Zero-Base Regulatory Review which operates on the assumption that all standards are defective and susceptible to major revision or rescission. To advertise its Zero-Base Review, OMC published a brochure showing on its cover all the safety standards being bulldozed, while the inside pages portrayed OMC personnel dumping a box of motor carrier safety regulations over a cliff. This exercise has resulted in proposals and final rules eliminating several of the FMCSRs. Other proposals were abandoned only because of strong opposition by the safety community. THE UNACCEPTABLE RESEARCH CONDUCTED BY THE OFFICE OF MOTOR CARRIERS An issue closely aligned with OMC's poor rulemaking record is the low quality of the basic research it performs or contracts out. Most of it is scientifically unacceptable, often using consultants with direct conflicts of interest who have past or ongoing research contracts with the trucking industry. Even worse, OMC repeatedly has directly contracted with the regulated industry to perform highly sensitive research on which future rulemaking hinges. Thus, the regulated party conducts research with public funds on issues directly influencing regulations with which it must comply. This recently occurred with the industry conducting a large part of the research on the 9-year long, $4.5 million Driver Fatigue and Alertness Study which was begun for the purpose of providing new research results for changing current commercial driver hours of service regulations. To no one s surprise, this research study, completely discredited even by OMC's own peer review
Another example is OMC's comprehensive truck size and weight study. Research was conducted and draft chapters produced over the past several years by consultants who had direct conflicts of interest. However, Congress in both the House and Senate bills for U.S. DOT appropriations for Fiscal Year 1996 explicitly directed FHWA that "[o]nly objective contractors with no conflicts of interest with the trucking or rail industries shall contribute to these studies." H. Rept. 104-177, 104th Cong., 1st Sess., p. 87 (1996). And the problem of prejudiced research continues even now. OMC issued a notice just last month asking for Office of Management and Budget (OMB) information collection approval on a non-competitive, $4 million contract with the Trucking Research Institute (TRI) of the American Trucking Associations to assess motor carrier operational scheduling practices including those which "have a positive effect on safety performance." 64 FR 5853 et seq. (February 5, 1999). The safety community is concerned that this research contract is a golden opportunity for the industry to claim once again that more driving
LOCATION OF OFFICE OF MOTOR CARRIER FUNCTIONS OMC has recently been reorganized in connection with other administrative changes that have redistributed certain traditional OMC functions to other Federal Highway Administration (FHWA) offices while attempting to integrate its essential operations with the highway safety office at FHWA. The reorganization has resulted in the combined Office of Motor Carriers and
We don't believe that these changes can do the job. In fact, other constituency groups representing state enforcement authorities oppose this move. Reshuffling personnel and office functions within FHWA cannot eliminate OMC's failure to carry out crucial safety responsibilities which are clearly stated in federal law. Advocates is deeply concerned about the adverse impact on public safety which can result from the demotion of OMC within FHWA to only a program office. We are convinced that the first step toward fundamental reform should be moving the essential duties of OMC to NHTSA, where new regulatory and enforcement efficiencies would be realized. The advantages of such a move are considerable. Briefly, a move of OMC functions to NHTSA will benefit safety in the following ways: Truck safety responsibilities belong in NHTSA whose primary mission is motor vehicle safety performance, including vehicle safety standards for both crashworthiness and crash avoidance, human factors, and the integration of vehicles into the traffic safety environment. NHTSA has been far more sensitive, as a regulatory agency, to conflicts of interest in conducting its research and rulemaking, and has applied high ethical standards in fulfilling its regulatory agenda, agency principles which would serve OMC well. NHTSA already is responsible for issuing the safety standards for newly-manufactured trucks. Relocating OMC to NHTSA will integrate the regulatory functions for new medium/heavy vehicle safety design and performance requirements with those governing commercial vehicle operating safety, thereby ensuring constant close coordination and timing of regulations for both safety arenas. After all, the public does not know which commercial vehicles on our highways meet NHTSA new medium and heavy vehicle standards and which are only subject to on-the-road requirements issued by OMC. Motor carrier safety regulation and enforcement actions will benefit enormously from NHTSA's research and development engineering expertise, research infrastructure, and statistical capabilities, including their extensive knowledge of epidemiology, biomechanics and injury control systems. In the realm of data collection and analysis, the NHTSA FARS system is currently superior to any of the data bases being generated within OMC which have come
OMC's field operations would be enhanced by placing them in NHTSA's well-administered system of regional offices, including the safety ombudsman functions of the Governors' Highway Safety Representatives who work closely with state and local law enforcement in coordination with NHTSA.
A key reason we favor the movement of OMC to NHTSA is the sorry record of its lack of action on crucial safety measures. In its current location, even further submerged within FHWA, OMC will be unable to act quickly and decisively to advance motor carrier safety. The following list of pressing issues of both regulation and enforcement clearly shows the urgent need to jumpstart OMC policy actions that enhance highway safety by moving it to NHTSA. 1. Reform of Commercial Driver Hours of Service. At the head of the list is hours of service rulemaking. Actions by OMC appear to support an increase in driver duty and driving hours, and to rationalize any adverse safety consequences. As numerous safety organizations have pointed out in detail to the agency time and again, no research shows that safety can be preserved, much less improved, by letting commercial drivers operate big trucks and buses for even longer hours than currently permitted in the FMCSR. In fact, the research over the past 20 years shows exactly the opposite. I have already mentioned the 16 percent increase in truck driver deaths in just one year. We know that most fatal crashes are single-vehicle events and the NTSB has shown that a high percentage of these crashes clearly are the result of driver fatigue and sleep deprivation: drivers simply fall asleep at the wheel. We are concerned that a significant part of the surge in truck driver deaths in 1997 could be due to hours of service problems and low truck driver alertness at the wheel. Members of the safety community agree that hours of service rules are outdated, but not for the reasons advanced by the trucking industry. The plain fact is that the current regulations exist only because of a statutory exemption granted in 1937 to the Fair Labor Standards Act which has sustained a pre-Depression approach to the use of labor, an approach which is no longer acceptable. Without a requirement to provide overtime pay after eight hours worked, trucking companies have every incentive to push drivers to work and drive very long hours. Forcing drivers to stay behind the wheel for 70 hours in an eight-day week, requiring them to drive for up to 16 out of 24 hours, providing them with inadequate opportunities for rest and recovery, and compelling them to make money by the mile rather than by the hour are major causes of truck crashes. Drivers regularly forgo sleep, falsify their logbooks to show compliance, and speed to make unreasonable Just-in-Time delivery schedules. Advocates firmly believes that drivers must be placed on a natural 24-hour circadian schedule, they must space driving bouts with considerably longer periods of off-duty rest time protected from interruption by carrier dispatchers, shippers, and consignees, and they must be given shift work cycles which allow them to lead normal, healthy lives. In the short term, even if wholesale revision of hours of service rules can't be accomplished over the next few years, we see no reason why OMC cannot adopt an emergency rule guaranteeing drivers more protected off-duty rest time in accordance with a February 7, 1995, NTSB recommendation which remains open without an acceptable FHWA response. 2. Other Rulemakings Must Be Concluded or Withdrawn. The rulemaking actions parallelling NHTSA safety standards which I mentioned earlier in my testimony should be quickly concluded so that even more benefits from these important in-service safety regulations are not lost. Also, unjustified disparities with the original NHTSA regulations, suchas the grandfathering proposal in OMC's trailer conspicuity notice, should be removed. This rulemaking and the outstanding proposal on underride guards must be quickly concluded with final rules and tight compliance calendars. In other rulemaking areas, OMC needs to close the proposal permitting commercial drivers to view television sets, monitors, and screens while operating large trucks and buses. Driver distraction is already a large and rapidly growing problem in all motor vehicles. The American people would be placed at even greater risk of death and injury if truck and bus drivers, already overworked and sleep deprived, are allowed to take their eyes off the road to watch media and computer screens while they are driving their vehicles. Even more important is the need for OMC to set strong standards for both entry-level and LCV driver training. It would be very desirable to have federal requirements for Commercial Driver License (CDL) applicants to be required to have in-hand certificates that they have successfully completed approved training courses in order to be able to take these CDL tests. OMC also needs to conduct the rulemaking it promised a few years ago to review the public interest and safety impacts of the National Highway System Designation Act's (NHS Act P.L. No. 104-59) hours of service exemptions accorded to several motor carrier industry sectors. These included motor carriers of agricultural commodities and farm supplies, motor carriers of construction materials and equipment, and utility service vehicles. In addition, although Section 345 of the NHS Act authorized OMC to monitor the safety effect of the exemptions, there has been no action to establish this important safety oversight. 3. Reduction and Elimination of Regulatory Waivers and Exemptions, and Termination of Pilot Programs. Next is the prospect of OMC continuing to award numerous waivers and exemptions, and conducting many pilot programs, relaxing key federal motor carrier safety regulations to the point where the exemptions swallow the rules. OMC has recently said on several occasions that it expects many applications for waivers and regulatory exemptions under the provisions of Section 4007 of the Transportation Equity Act for the Twenty-First Century (TEA-21, P.L. 105-170), the provision governing requirements for pilot programs, waivers and exemptions. Unfortunately, OMC right now is conducting a major pilot program which violates its own hours of service regulations and fails to observe any of the procedural and substantive requirements of Section 4007. In addition, OMC has recently issued an interim final rule, effective immediately upon publication, which states how OMC will implement Section 4007. Not only was no prior public comment allowed on the content of the final rule, but the rule itself is seriously inadequate for implementing the carefully crafted directions to OMC provided by Congress for evaluating and awarding waivers and exemptions, and for conducting pilot programs. Advocates is very concerned about OMC's intentions with regard to Section 4007. OMC may be opening a Pandora's box. There are strong indications that OMC will issue numerous waivers, without notification to the general public or to state authorities, and grant regulatory exemptions
4. Reform of the Enforcement Program and Safety Ratings. The extensive deficiencies of OMC's enforcement program, including both Compliance Reviews and roadside safety inspections, are so well-known now due to the careful appraisal by the U.S. DOT OIG, the GAO, and even the Commercial Vehicle Safety Alliance, that I won't try to itemize them again in this testimony. Let me refer you and the committee to the list of enforcement failures that I am submitting for the hearing record. Safety ratings are crucial to the confidence of the public, insurers, and Congress that motor carriers are being frequently and systematically evaluated, dangerous trucks and buses are being pulled off the road, and chronic offenders in the motor carrier community are having their operating authority suspended or revoked. Safety ratings must be increased and the ratings must be meaningful measures of real-world operating safety, not artifacts of a Byzantine safety rating methodology which ends up allowing dangerous carriers back on the road. Moreover, the Satisfactory rating must really mean something special about a carrier's safety record. It shouldn't be just a code word for "Not
Compliance Reviews (CRs) must be accelerated in numbers and rapidly improved in quality. We cannot allow the current downward spiral to continue. Most importantly, OMC must act decisively to ensure that their investigators have access to the most detailed information necessary to perform the best CRs, including corroborative electronic data of regulatory compliance. In this regard, OMC is long overdue in requiring on-board recorders to stop the widespread falsification of hours of service paper logbooks which, in turn, is a prime reason why every day there are thousands upon thousands of sleep-deprived, exhausted truck and bus drivers on our streets and highways who are major threats to highway safety. OMC has received repeated petitions for rulemaking to require on-board recorders from Advocates and other safety organizations, but has either denied or ignored them. It took concerted action by safety organizations over many years,with final inspiration supplied by an Act of Congress, to get OMC to ban radar detectors in commercial vehicles. We hope it doesn't take another statutory mandate for OMC to realize that many crashes can be prevented, lives saved, and injuries averted, if it strengthens its enforcement regime by taking this most important step of requiring on-board, electronic monitoring of commercial driver hours of service compliance. Also in the enforcement realm, OMC must step up the inspection of both domestic and foreign motor carriers and substantially increase the number of Level 1 inspections following years of systematically reducing the requirement for and the percentage of Level 1 inspections. Border traffic is increasing, inspection facilities are inadequate, inspectors at some crossings are far and few between, and dangerous trucks, unqualified drivers, as well as illegal hazardous materials and contraband, are entering the U.S. because of highly inadequate border inspection efforts. In this connection, OMC needs to submit the CVSA Out of Service inspection criteria to public rulemaking to determine if these enforcement guidelines meet the letter and the spirit of the FMCSR. Last, OMC needs simply to step away from promoting a voluntary approach to industry regulatory compliance and substituting so-called "educational" efforts for the deterrent effect of applying strong, swift penalties for FMCSR violations. In a similar vein, although we believe that federal-state
CONCLUSION I would not want to characterize the foregoing list of OMC actions as exhaustive, but it certainly would be a very good start and significantly advance both motor carrier and general highway safety.
However, I cannot stress enough that we do not believe that this can be accomplished by the core safety responsibilities and functions of OMC remaining where they are today. In fact, OMC has been weakened, not strengthened: OMC no longer has its own Associate Administrator; it has been reduced to a program office with only a director where it will be even further submerged in the agency and less visible to the Secretary of Transportation, to the public, and to Congress. This does not augur well for fundamental reforms at OMC and an accelerated attention to enforcement and regulatory failures. So let me state again that OMC needs to be placed in NHTSA. NHTSA's research and rulemaking capabilities, and its expertise in vehicle safety standards and performance is a natural site for OMC core functions. I believe that, in fact, OMC would blossom in NHTSA. In NHTSA, motor carrier safety will be put first and safety regulations and enforcement policy will not be initially filtered through layers of freight productivity goals, safety standards exemptions, and regulatory rescissions. If Congress acts decisively to move OMC functions to NHTSA, I am certain that motor carrier safety and the interests of the American people will be well-served. In fact, you can count on it. But if a vigorous overhaul of OMC is not mandated and rationalization of the current location of OMC is accepted, the culture of compromise and mediocrity in motor carrier safety regulation and enforcement will continue. Yes, some windowdressing will be applied and certain changes in the near term will be exaggerated as signs of reform. But when the fatality and injury figures are successively returned for 1999, 2000, 2001, and 2002 showing more crashes, more deaths, and more injuries, it will be clear that Congress allowed a watershed opportunity to pass that would have made a real and measurable difference in highway safety. That concludes my testimony and I am prepared to answer any questions you may have or supply any materials you might need to help you in your review of this difficult but pressing public health and safety issue.
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