June 10, 2003
Members will hear testimony on motor carrier safety, including the status of safety in the truck and bus industries, existing safety programs, and recommendations for reauthorization, including the Administration's legislative proposal, the Safe, Accountable, Flexible and Efficient Transportation Equity Act of 2003 (SAFETEA). Senator Sununu will preside. Following is a tentative witness list (not necessarily in order of appearance):
The Honorable Annette M. SandbergAdministratorFederal Motor Carrier Safety Administration
Chairman McCain, Senator Hollings, and Senators of the Committee. It is my pleasure to appear before you today as this Committee considers reauthorization of the motor carrier safety program. When Secretary of Transportation Norman Mineta appeared before this Committee in May to present the President’s reauthorization proposal, he outlined the centerpiece of the Administration’s bill—highway safety. We have worked closely in the Department, joining NHTSA and FHWA, to develop our safety proposals. Our collaboration with the other safety agencies is essential because highway safety has many facets and no single solution. If we are to stem the tide of this terrible loss of life on our Nation’s highways we all must play a role, combine our knowledge and expertise, and coordinate our program delivery. My colleagues and I share the belief that our programs are complementary rather than competing. We are committed to working together with this Committee to reduce fatalities on our Nation’s highways. With your help, we will make much needed changes over this decade to reduce this senseless loss of life. This Committee demonstrated great leadership in the passage and enactment of the Transportation Efficiency Act for the 21st Century (TEA-21) and the Motor Carrier Safety Improvement Act of 1999 (MCSIA). The changes you crafted in these Acts have reduced fatalities in crashes involving trucks four years in a row, even as travel increased. This is clear and unequivocal progress, and justifies the confidence of your Committee in the impact that FMCSA would have on commercial motor vehicle safety. FMCSA has taken your direction and acted upon it. Despite this progress, much remains to be done. I commit to build on this success and to improve commercial motor vehicle safety by bringing greater efficiency and effectiveness to FMCSA’s programs. ENHANCING OUR SAFETY GRANT PROGRAMS Overall, TEA-21 and MCSIA provided a solid foundation for our traditional motor carrier safety grant programs—Motor Carrier Safety Assistance Program (MCSAP), Commercial Drivers’ License Program (CDL), Border, and the Performance Registration Information System Management (PRISM). In TEA-21, CDL and PRISM were funded from Information System funds, while Border was a set-aside from MCSAP. We envision these four programs as separate grant programs totaling $1.4 billion over the six-year authorization. Motor Carrier Safety Assistance Program Grants TEA-21 eliminated most earmarks from MCSAP and restructured it to promote performance-based activities. This change provided the needed flexibility to State grantees to allow them to invest in areas of the greatest crash reduction based on their own circumstances. Our State partners conduct roadside inspections, perform compliance reviews, and enforce traffic laws on commercial operations. Reauthorization would continue to support this vital partnership and expand our relationship with States into new areas of compliance. This will enable us to address our future challenges by building on our past success. While we recommend that most major features of the MCSAP remain unchanged, we believe we can improve MCSAP by amending the traffic enforcement component, improving the performance incentive funding, and providing funding to support new entrant reviews. The current MCSAP includes an incentive for States to improve safety performance if they demonstrate improvement in any or all of five categories related to reduction of large-truck involved fatal accidents and fatal accident rates, timely upload of CMV inspection and accident data, and verification of CDL information. The Agency proposes to provide 100 percent MCSAP funding to States for performance incentives. To address unsafe operation of passenger vehicles around large trucks, we seek discretion to fund traffic enforcement. This provision will give participating jurisdictions greater flexibility to use MCSAP funding for traffic enforcement when necessary to reduce large-truck related crashes. Education of the general public about sharing the road with large trucks is important, as well as targeted education to young adults on this subject. All State driving license manuals should reflect this information. As outlined in MCSIA, a new entrant program to bring motor carriers into compliance with safety regulations at the onset of operations can improve safety. These new entrants, numbering 40,000-50,000 annually, will be targeted to improve commercial motor vehicle safety. Through MCSAP, a Federal-State partnership will be established to implement the New Entrant Program. Overseeing and supporting the conduct of safety audits, establishing baseline data, and implementing a program of regular data collection to assess the progress of the New Entrant Program will enable FMCSA to fulfill its statutory mandate to improve new entrant safety performance. This program will meet the requirements set out in Section 350 of the FY 2002 DOT Appropriations Act as a precondition to opening the Southern border to Mexican commercial vehicles. Forty-six States have committed to work with us to conduct new entrant safety audits, having agreed to provide approximately 195 of the estimated 262 State and Federal personnel needed. The State personnel will be either new hires or be reassigned from other law enforcement duties. In FY 2003, these individuals were supported through MCSAP grant funds. Contracted safety auditors were used to make up the balance of staff. Over the reauthorization period these individuals will be supported through MCSAP grant funds. Approximately 67 contracted safety auditors will be used to make up the balance of staff. We plan to hire 32 full-time Federal staff to cover program oversight, including management, review, and approval of the safety audits. We believe this Federal-State partnership, like the traditional MCSAP, will yield significant results. Commercial Drivers License Grants The CDL grants provided under TEA-21 were a set-aside from the agency’s information system funds. MCSIA provided additional funding when new driver disqualification standards and record-keeping requirements were imposed on States. Improving the accuracy and completeness of driver history records is key to enhanced safety. The driver’s license is the main form of personal identification in the United States. Ensuring the bearer of the license is in fact who he or she claims to be depends on a diverse set of security technologies. Particularly in the transportation of hazardous materials, States need current driver licensing technology. Grants under this program will allow States to enhance this technology and continue to upgrade their record-keeping systems. We propose up to a 10% set-aside, which can be provided to States at 100% funding. We propose increased CDL grant funding for: 1) improving State control and oversight of State licensing agency and third party testing facilities; 2) developing management control practices to detect and prevent fraudulent testing and licensing activities; 3) supporting State efforts to conduct Social Security Number and Bureau for Citizenship and Immigration Services (formerly the Immigration and Naturalization Service) number verification for CDLs; and 4) maintaining the central depository of Mexican and Canadian driver convictions in the U.S., the disqualification of unsafe Mexican and Canadian drivers, and the notification of Mexican and Canadian authorities of convictions and/or disqualifications. Together, these activities will add to the variety of driver’s license technologies for safety and security, and will enhance FMCSA’s ability to identify problem drivers. Performance Registration Information Management System Grants The PRISM program was pilot-tested in ISTEA and mandated as a new program in TEA-21. Linking safety fitness to vehicle registration at the State level, it identifies high risk carriers based on their actual over the road performance, provides many opportunities for poor performing carriers to improve, actively monitors safety progress, and applies progressively harsher sanctions to those carriers who fail to improve. Under PRISM, identification of the carrier responsible for the safe operation of vehicles is made at the time of vehicle registration. Through the use of a “Warning Letter”, thirty percent of the carriers improve their safety performance without Federal intervention. PRISM provides for immediate, visual identification to law enforcement that the carrier should not be on the road by removing the license plates. As more States become fully operational and suspend vehicle registration in conjunction with Federal out of service orders, vehicles associated with high-risk carriers will be prevented from operating on the road. With 25 participating States, this program does not require long-term Federal maintenance once the State receives its development funds. Border Enforcement Grants Border safety activities continue to remain a high priority for FMCSA and the States. Under TEA-21, border operations, both northern and southern, are funded as a 5 percent set-aside from MCSAP. We propose to create a separate grant program to address current and future State needs at the border. In the FY 2002 Appropriations Act, Congress established requirements for opening the U.S.-Mexico border to long-haul commercial traffic. This event alone, when fully realized, necessitates a separate grant program to ensure a stable funding source for State inspectors and operations. One Congressional requirement for opening the border was that the DOT Inspector General must verify the satisfaction of all statutory conditions. Inspector General Ken Mead concluded that FMCSA has met these requirements, including the hiring and training of enforcement personnel and the establishment of inspection facilities and safety procedures at the southern border. Due to our actions, Secretary Mineta certified that the Department had met the Congressional mandates, providing a basis for the President to lift the moratorium on granting operating authority to Mexican carriers within the interior of the United States in November 2002. Currently, the Border remains closed because of the 9th Circuit Court ruling that DOT had not conducted the appropriate, in-depth environmental analysis for certain rules designed to satisfy the Congressional requirements. The Court held that the environmental assessment that the agency prepared was inadequate, and that FMCSA should have prepared an Environmental Impact Statement and Clean Air Act Conformity Analysis. The Administration filed an en banc appeal of the decision to the 9th Circuit on March 10, which was denied. The Administration is considering appropriate next steps in responding to the ruling. Meanwhile, FMCSA is ready now, and will be ready whenever the border is opened, to ensure the safety of border operations. Information Systems Information systems and analysis support all of the agency’s safety programs and will underlie our future efforts to improve program delivery. Data collected across the country by Federal safety investigators and State partners from roadside inspections, crashes, compliance reviews, and enforcement activities provide a national perspective on carrier performance and assist in determining enforcement activities and priorities. This allows us to analyze program effectiveness and direct resources in the most efficient and productive manner to improve motor carrier safety. In TEA-21, this Committee provided essential dedicated funding to improve Federal and State systems of carrier, vehicle, and driver safety records, and enhance State on-line capabilities for roadside enforcement. With this funding we greatly improved the accuracy and timeliness of our inspection and crash data and made this information available on-line to shippers, carriers, and insurance companies. We created new systems to allow motor carriers to register for authority on-line and file the necessary insurance documentation. With long-term funding and authority we can continue our progress and upgrade our ability to identify the high-risk carriers through data improvements. Regulatory Development Regulatory development is another fundamental element of FMCSA’s compliance and enforcement process. This is an area where greater attention and resources are needed to address all mandated regulations and ensure program performance will not be compromised. Previously, funding for this activity has been obtained by borrowing against other program activities, such as research and technology, requiring the agency to struggle with inconsistent funding streams. The absence of a consistent funding source causes starts and stops in a process that requires a consistent level of effort for timely completion of regulations and their supporting analyses. For this reason, we are proposing to dedicate funds to our regulatory development program. We will also use our funds to examine alternative regulatory programs. In TEA-21, Congress provided FMCSA with authority to establish exemption and pilot programs under strict safety controls. We now operate a vision exemption program where applications total more than 60 per month. We are approached routinely to consider other alternative programs to our safety regulations. However, these are resource intensive programs with ample Federal oversight responsibilities. We need to approach these activities cautiously. Medical Review Board and Registry The authorization for a standing medical review board will provide the agency with much needed expert medical advice on driver qualification standards and guidelines, medical examiner education, and medical research. The members would come from leading medical/academic institutions and serve 3 to 5-year terms. In the past, we have assembled expert medical specialists on an ad hoc basis to review the standards and guidelines for qualifying truck and bus drivers. A standing review board will greatly enhance the agency’s ability to adopt regulations that reflect current medical advances. Many of the medical standards currently in effect were originally adopted in the 1970s, or earlier. With over six million commercial drivers under our jurisdiction, we must ensure that only drivers physically qualified to operate a commercial vehicle are doing so. There are tragic examples where this has not been the case. A medical examiner lacking familiarity with our medical criteria certified a Louisiana bus driver with heart and kidney disease who later crashed, killing 22 passengers. A medical examiner registry, as called for in our proposal, will help FMCSA to provide more comprehensive information on medical practitioners to drivers and carriers. It will help disseminate information to practitioners regarding medical policies and requirements relevant to the physical qualifications of commercial drivers. A medical registry is necessary to upgrade the quality of CDL driver medical qualification exams. With the registry, we will better monitor the quality and practices of medical examiners. A certification process will ensure that medical examiners are qualified to perform driver physical exams. Establishment of a medical registry of qualified medical examiners would respond to the National Transportation Safety Board, which issued eight safety recommendations in September 2001 recommending that FMCSA establish more comprehensive standards for qualifying medical providers and conducting medical qualification exams. STRENGTHENING ENFORCEMENT Enforcement is the centerpiece of our motor carrier safety program. This Committee made much needed improvements to our enforcement program under TEA-21. I believe those changes contributed substantially to the reduction in fatalities that we see today. We propose to expand the toolbox of enforcement techniques, close loopholes that permit unsafe practices, and improve our penalty structure. While there are many such features included in our legislative proposal, I would like to emphasize only a few today, addressing various penalties for motor carrier noncompliance with out-of-service violations and safety record-keeping requirements, improvements to household goods enforcement, and new authority over motor carrier management and operations. Intrastate Violations The agency’s enforcement reach must extend to the intrastate operations of interstate carriers in order to enhance safety and ensure uniformity in enforcement and oversight responsibilities. At present, our inability to reach intrastate operations represents an artificial line from a safety point-of-view. When our investigators examine a carrier’s operations they must discard intrastate safety violations they discover. If an interstate carrier is declared unfit to operate, it may continue to operate solely within a State. Many interstate motor carriers have substantial intrastate operations. For purposes of safety, it is counterproductive to create two classes of accidents and safety inspection data – one subject to Federal jurisdiction, the other not – when, typically, both involve the same vehicles, drivers, dispatchers, mechanics, and safety management controls and may have the same safety result. In examining a motor carrier’s accident and inspection data, it is often difficult, and sometimes impossible, to determine whether the vehicle involved was making an interstate or intrastate trip. We seek to amend this enforcement boundary so that we may take steps to prevent unsafe carriers from operating. Under this proposal, a Federal safety determination of an interstate motor carrier suspends both interstate and intrastate operations. Similarly, a State safety determination that an intrastate carrier is unfit halts both its intrastate and any interstate operations. Congress has recognized this limitation in other motor carrier safety programs and has set precedents in eliminating inter/intrastate distinctions in the areas of hazardous materials, drug and alcohol testing, and CDL regulations. In these cases, Federal regulations apply to the full scope of operations. An unfit carrier should not be allowed to operate anywhere. Oversight of Company Officials Similarly, we have limited authority over company officials who exhibit continual disregard of safety management practices. We find a few motor carrier managers that order, encourage, and tolerate widespread regulatory violations. When caught, they declare bankruptcy, rename the motor carrier and reshuffle the managers’ titles, sell its assets to a pre-existing shell corporation owned and managed by the same people, or otherwise attempt to evade the payment of civil penalties or obscure the identity of the motor carrier and, thus, its safety record. These individuals perpetuate a casual indifference to public safety. Although the total number of such officials is small, their actions create a risk disproportionate to their numbers. To address this practice we seek authority to suspend, amend, or revoke the registration of a for-hire motor carrier if any of its officers has engaged in a pattern or practice of avoiding compliance, or concealing non-compliance, with Federal motor carrier safety standards. This provision is intended to address those few motor carrier officers who have shown unusual and repeated disregard for safety compliance and would be used only in the most serious cases. Household Goods Enforcement I know that the Chairman and Senators of this Committee have noticed an increase in the number of constituent complaints regarding unscrupulous household goods carriers. The letters we receive, as well as the calls coming into the FMCSA hotline, have been increasing. FMCSA receives thousands of consumer complaints annually. Currently, the Agency has three full-time commercial investigators devoted to the Household Goods Enforcement and Compliance program and has budgeted for more for FY2004. While the household goods industry as a whole performs over a million successful moves annually, a small group of unscrupulous people scattered over a handful of States has used this industry to bilk unsuspecting consumers of their hard earned money. The complaints from the American moving public have reached significant proportions. We need to establish a more visible enforcement program through increased investigations, and a more robust outreach effort to reduce the number of consumer complaints filed against household goods carriers and brokers. Our efforts will also be aimed at increasing consumer awareness to allow shippers to make better-informed decisions before they move across State lines. Household goods carriers operating in interstate commerce are required to have or participate in an arbitration program as a condition of their registration with FMCSA. The arbitration programs must comply with the requirements of 49 U.S.C. 14708, and the carrier must submit to binding arbitration upon shipper request for cargo damage or loss claims of $5,000 or less. Seventy-five percent of the complaints we receive pertain to loss and damage claims. FMCSA intends to conduct an extensive study of existing Household Goods Dispute Settlement Programs and alternative arbitration programs in the household goods moving industry. We need this critical information to determine the extent of the problem, to determine effective strategies and countermeasures, and to evaluate the effectiveness of these programs in resolving loss and damage disputes and claims between shippers and carriers. We cannot continue to address these consumer issues on our own—safety is our primary business. Even with additional resources, household good disputes will likely increase. As such, we seek authority for State Attorneys General to enforce Federal household goods regulations against interstate household goods carriers. This approach has been successful in increasing State enforcement of Federal telemarketing regulations. We believe it will help to reduce abusive practices among movers of household goods. Out-of –Service Orders and False Records The out-of-service order is one of the tools we have to prevent a motor carrier from operating when it is unfit. Once issued, the order is designed to stop a carrier from continuing to operate until it comes into compliance. In some instances, carriers violate these orders and consider the safety fines as a “cost of doing business.” This mentality shows a flagrant disregard for the safety of the highway users. Currently, carriers who knowingly require or authorize drivers to violate the order are subject to a maximum civil penalty of only $16,000. To be effective, the penalty should be harsh to ensure compliance with the order. If a carrier knowingly and willfully requires a driver to violate an order, we propose a fine of $100,000, up to one-year imprisonment, or both. If a driver violates an order, there should be a standard of progressive fines and disqualification standards. False records or companies that hamper the ability of our safety investigators to access safety records can limit the effectiveness of our enforcement program. A few carriers will deliberately impede our investigators by refusing access to records, buildings, or equipment or falsifying records to obscure safety violations. To deter those who refuse access to their records, we propose a $500 per day fine, up to a maximum of $5,000 for the same violation. Increasing the current fines for false records to $1,000 per day, up to a maximum of $10,000 per violation, would stem this practice. FUNDAMENTAL BUILDING BLOCKS FOR PROGRAM DELIVERY When this Committee established the FMCSA under the Motor Carrier Safety Improvement Act of 1999, you wanted a results-oriented and performance-driven safety organization. FMCSA shares that vision and wants to build an organization in this reauthorization that maximizes program safety benefits while utilizing an efficient delivery system. Research and Technology FMCSA’s ability to integrate research and technology into our regulatory and enforcement programs has contributed to sound policy-making. MCSIA did not establish separate authority for a FMCSA research and technology program. We believe this authority is fundamental to ensuring that our future safety decisions are based on sound research. Research and technology supports life-saving and injury-reducing projects that create qualified and alert drivers, smart commercial vehicles, smart roadside facilities, secure hazardous material shipments, and expanded partnerships with States and universities. The primary goal of FMCSA research and technology activities is to improve commercial vehicle safety and security by promoting studies on issues most frequently related to the cause of crashes and loss of life. Based on regulatory and enforcement needs and on input from stakeholders, industry, government, and academia, we have investigated, among others, driver fatigue and health issues, vehicle stability, carrier and shipper safety management, and a variety of vehicle-based safety technologies. We have actively participated in research activities sponsored by the Transportation Research Board and have cooperated with numerous transportation research centers and laboratories in the U.S. and abroad. FMCSA’s role in the transportation research community will increase as we expand our partnerships beyond traditional roles and participate in and sponsor top-level national conferences and workshops. Finding effective solutions and harnessing emerging technologies does not happen without a solid research foundation. Section 1704 of the Department's Reauthorization proposal would provide Federal ITS deployment funds each fiscal year to support of the Commercial Vehicle Information Systems and Networks (CVISN) Deployment program. The Department is requesting $25 million in its FY 2004 budget request for CVISN deployment. Eligible States would receive grants up to $2.5 million each for deployment of CVISN core capabilities in the areas of safety information exchange, interstate credentials administration, and roadside electronic screening. States that have already implemented core capabilities could be eligible to receive up to $1 million of Federal ITS funds for deploying enhanced CVISN capabilities that improve safety and the productivity of commercial vehicle operations, and enhance transportation security. CONCLUSION TEA-21 and MCSIA provided a solid foundation for the motor carrier safety program. This reauthorization represents the first opportunity for our new agency to step forward, stand on its own, and chart our course for the future. Critical program characteristics—flexibility, a strong Federal-State partnership, and essential enforcement tools for our Federal programs—should be reinforced. I look forward to working with you on this critical endeavor to improve highway safety for the motor freight and passenger carrier industries and all highway travelers. Thank you for this opportunity to testify on FMCSA’s proposal to achieve this goal. I would be glad to answer any questions you may have.
Witness Panel 2
Mr. Douglas G. Duncan
Chairman Sununu and members of the Committee, thank you for the opportunity to express the trucking industry’s perspectives regarding Truck and Highway Safety Program issues that are of great importance to the trucking industry. I am Doug Duncan, President & CEO of FedEx Freight. As part of the FedEx Corp. family of companies, FedEx Freight is the market leader in providing next-day and second-day regional, less-than-truckload freight services. FedEx Freight generates more than $2 billion in annual revenues and is comprised of two operating companies, FedEx Freight East and FedEx Freight West. I am appearing before the Committee today on behalf of the American Trucking Associations, Inc. (ATA). ATA is the national trade association of the trucking industry. ATA is a federation of affiliated State trucking associations, conferences, and other organizations that together include more than 37,000 motor-carrier members, representing every type and class of motor carrier in the nation. ATA represents an industry that employs nearly ten million people, providing one out of every fourteen civilian jobs. This includes the more than 3 million truck drivers who travel over 400 billion miles per year to deliver to Americans nearly 70 percent of their transported food, clothing, finished products, raw materials, and other items. American industrial and commercial enterprises are able to compete more effectively in the global marketplace due to the benefits of safe and efficient trucking. Truck transportation is the most flexible mode for freight shipment, providing door-to-door service to every city, manufacturing plant, warehouse, retail store and home in the country. For many people and businesses located in towns and cities across the United States, trucking services are the only available means to ship goods. Trucks are the sole providers of goods to 80 percent of American communities. Five percent of the Nation’s GDP is created by truck transportation. Actions that affect the trucking industry’s ability to move its annual 9 billion tons of freight have significant consequences for the ability of every American to do their job well and to enjoy a high quality of life. While we are a large and highly diverse industry, ATA members all agree that highway safety is job number one for our companies and our industry. Promoting and advancing safety is not only the right thing to do for our industry, it makes good business sense. I appreciate the opportunity to share our ideas with this Committee on ways to improve highway and truck safety. THE TRENDS IN TRUCK SAFETY Mr. Chairman, the past two reauthorization acts developed and promoted by this Committee have been instrumental in revitalizing and refocusing Federal surface transportation policy, particularly in the area of highway safety, and we commend this Committee for its ongoing leadership. The programs that this Committee has created and authorized have contributed to improving highway safety, and overall truck safety. According to the Federal Motor Carrier Safety Administration (FMCSA), the safety trends in the trucking industry are clearly heading in the right direction. In their most recent report entitled, "Large Truck Crash Facts 2001," FMCSA reports that over the last 20 years (1981 to 2001), the fatal crash rate for large trucks has declined from 4.5 fatal crashes per 100 million miles traveled to 2.1 fatal crashes per 100 million miles traveled, a 53 percent decrease. (See Table 1 from FMCSA’s report below) FMCSA also reports that the large truck injury and property damage crash rates are also on the decline. From 1988 to 2000 (1988 was the first year in which FMCSA began collecting and analyzing injury and property damage crash data), the large truck injury crash rate has declined from 67.9 injury crashes per 100 million miles to 41.2 injury crashes per 100 million miles, a 39 percent decline. Similarly, the property damage only crash rate declined between 1988 and 2000 from 210.7 crashes per 100 million miles to 153.7 crashes per 100 million miles, a 27 percent decline. (See Tables 4 & 5 from FMCSA’s report on the next page) FMCSA also reports that alcohol involvement for large truck drivers involved in fatal crashes has declined 75 percent since 1982, the first year that the Fatality Analysis Reporting System (FARS) included data for alcohol involvement in fatal crashes. FMCSA's report has a wealth of additional data and information on trends, and ATA encourages Committee Members and staff to view the report online at: http://ai.volpe.dot.gov/CarrierResearchResults/CarrierResearchResults.asp?file=PDFs/LargeTruckCrashFacts2001.pdf Additionally, within the last two weeks, the National Highway Traffic Safety Administration (NHTSA) released a new crash study entitled “An Analysis of Fatal Large Truck Crashes.” This report also has a great deal of useful information, and can be viewed online at: http://www-nrd.nhtsa.dot.gov/pdf/nrd-30/NCSA/Rpts/2003/809-569.pdf The U.S. Congress, the U.S. Department of Transportation, the State agencies involved in truck safety, and the millions of people employed in the trucking industry should be proud of and pleased with the truck safety progress that has been made to date. However, ATA strongly believes that more can and should be done. However, the right policies must be established and the most effective actions must be taken, especially when resources are limited. Put more simply, the solutions must address the problems. Incorrect or ineffective policies and actions may only blunt our pursuit of safer transportation systems. Our collective goal must be to continue to push the trends even further in the right direction. ATA's recommendations throughout the remainder of this testimony are aimed at achieving this goal. Our recommendations are categorized in the following three areas: 1. Traffic Safety and Truck Safety Program Recommendations 2. Regulatory Change Recommendations, and 3. Research and Advisory Committee Recommendations I. TRAFFIC SAFETY AND TRUCK SAFETY PROGRAM RECOMMENDATIONS Truck safety has improved over the last 20 years. An interesting question, however, is "What has caused the improvement?" This is a tough question to answer for both industry and government officials. We believe that some programs that have been implemented in the last 10 to 20 years have contributed to the overall positive picture. The industry supported Federal-State truck safety inspection grant program (known as the Motor Carrier Safety Assistance Program or MCSAP) has had an impact by improving truck condition; the Commercial Driver's License (CDL) program has contributed by raising the bar for driver entry into the industry; and the implementation of voluntary drug testing by the industry, followed by a mandatory federal drug and alcohol testing program, has also contributed in a positive way. It is very likely that the increase in seat belt use by truck drivers and other motorists has also had a positive impact. Many other industry and government initiatives are likely to have had some benefit as well. The point here, however, is that we still need to have a better understanding of what has worked and why. Additionally, we still do not understand thoroughly how and why truck crashes occur. A. SAFE SPEEDS SAVE LIVES - GREATER SPEED ENFORCEMENT IS NEEDED ATA recommends that Congress authorize additional funding for the Section 402 Highway Safety Grant Program administered by NHTSA, and the MCSAP truck safety grant program administered by FMCSA, specifically for increased traffic and speed enforcement efforts in the highway reauthorization bill. ATA further recommends that Congress make it clear in legislative language that MCSAP funding should be used for State speed enforcement efforts aimed at both commercial and non-commercial drivers, and that speed enforcement activities aimed at commercial drivers do not have to be linked to a North American Standard Inspection. Additional funding, additional emphasis, and greater Federal leadership are needed on this issue to reduce the speed and unsafe driving behaviors of all drivers on our highways in order to save lives. ATA is also a firm believer in the life-saving benefits of seat belt use. ATA recommends that Congress continue to support and fully fund the occupant protection programs of NHTSA, including the ongoing 'Click It or Ticket' grant program. Justification - Since the results of FMCSA’s ongoing large truck crash causation study are not yet available, policymakers must use the best available data and information to make informed policy and program decisions. For years, crash research has found that human errors and unacceptable driver behaviors are the primary causes of (or primary contributing factors to) highway crashes, including truck-involved crashes. It is interesting to note, however, that both the Congress and the U.S. DOT have traditionally taken different approaches to improving traffic safety versus truck safety. NHTSA’s traffic safety programs have focused on gaining strong traffic laws, educating the public on these strong laws, and then using visible and targeted traffic enforcement programs to enforce these laws in order to positively affect motorist behavior. NHTSA has shown that this selective traffic enforcement program (STEP) approach effectively changes motorist behavior and thereby increases highway safety. NHTSA has also focused on improving its traffic safety and crash data collection and analysis in order to better guide the agency’s programs and resource expenditures. FMCSA's truck safety programs, on the other hand, have focused on increasing the number and scope of regulations on drivers and motor carriers, enforced through on-road safety inspections and facility compliance audits. Unfortunately, FMCSA does not have persuasive research that shows increased regulatory and compliance efforts equal greater truck safety. Since so much of truck safety is rooted in overall traffic safety, Congress and FMCSA should seriously consider much more of a traffic safety approach toward improving truck safety. To expand on this point, NHTSA reports that speeding was a contributing factor in more than 30 percent of all fatal crashes in 2001. This means that more than 12,800 people lost their lives in 2001 in part due to speed-related crashes. This is simply unacceptable. The time has come to combat excessive speeding, in order to improve both traffic and truck safety. There are four words that every motorist and every commercial vehicle driver needs to remember when they buckle up and take the wheel of their vehicle: SAFE SPEEDS SAVE LIVES! The Section 402 Highway Safety Grant Program administered by NHTSA supports many outreach and enforcement programs, including the priority programs to encourage the proper use of occupant protection devices and reduce drug and alcohol impaired driving. While these programs clearly deserve a high priority by NHTSA, ATA is concerned that strong, visible speed enforcement may not be getting the focus, attention and funding it deserves. Additionally, the Motor Carrier Safety Assistance Program (MCSAP), administered by FMCSA, focuses on priority truck and bus safety initiatives that, for the most part, do not address speeding truck and bus drivers, or other motorists with which commercial drivers share the road. The MCSAP program, a generally successful truck and bus safety inspection program, is simply not putting enough emphasis on traffic enforcement activities. Strong, visible speed enforcement aimed at commercial vehicle drivers, as well as other motorists with whom commercial drivers share the road, needs to take on a much greater role in the MCSAP program. In fact, there is currently an artificial constraint that keeps the amount of speed enforcement activity in the MCSAP program small. FMCSA’s regulations require that all speed enforcement stops of trucks (as well as all other types of traffic enforcement stops) include an appropriate North American Standard Inspection of the truck or the driver, or both, for the activity to be eligible for MCSAP funding. This inspection requirement, found at 49 CFR 350.111, is unnecessary and unwarranted and discourages traffic enforcement for commercial motor vehicles. Additionally, since speeding and other unsafe driving behaviors of non-commercial drivers play an even greater role in truck-involved crashes than do the actions of the commercial motor vehicle driver, the MCSAP program must also include traffic enforcement efforts aimed at unsafe motorist behavior. This funding should be in addition to the money provided for traditional MCSAP enforcement activities. B. A COMPREHENSIVE EDUCATION AND OUTREACH PROGRAM IS NEEDED ATA recommends that Congress authorize and fund a comprehensive Share the Road Safely education and outreach program that is designed to educate and change the behavior of all highway users. This effort must be coupled with increased MCSAP traffic enforcement to have the desired outcomes. A program evaluation requirement should also be included. This program should be funded at not less than $5 million dollars annually. Justification - The majority of truck-involved crashes are multi-vehicle crashes that involve one truck and one passenger vehicle. Traditionally, FMCSA (and its predecessor organization) has placed the burden of preventing these truck-involved crashes on the truck driver and the trucking industry. However, the best available crash data indicates that the actions of the truck driver play a contributing role in only 30 percent of fatal crashes where another vehicle is involved. The unsafe actions of the automobile driver play a contributing in about 70 percent of the fatal crashes involving a truck. Therefore, by focusing their resources and attention on truck drivers and trucking companies, FMCSA is addressing a relatively small portion of the fatal crashes involving trucks. A large cooperative effort is needed to attack the problem of motorists being unaware of the operating limitations of large trucks and buses and, therefore, being unaware of how to more safely share the road with these vehicles. Private sector organizations and groups, in cooperation with FMCSA and NHTSA, can provide resources and expertise for the development and dissemination of information to their constituencies and to the general public. This effort should not undermine or overtake existing efforts such as ATA's Share the Road program, or AAA's Share with Care program. Rather, it should seek to more widely disseminate consistent and credible Share the Road Safely information and messages by funding and leveraging off of programs already in place. FMCSA has a very small Share the Road Safely program and has traditionally spent less than one percent of its annual budget on this program. There is a small coalition as part of this program, in which ATA is a participant, which could provide the foundation for a much larger and more effective outreach effort. As recommended recently by the U.S. General Accounting Office, this education and outreach effort should be closely coordinated with the increased traffic enforcement efforts, similar to NHTSA’s STEP approach described above. C. SAFETY SCREENING OF TRUCK DRIVERS CAN BE IMPROVED ATA recommends that Congress authorize FMCSA to provide access to safety data and information contained in MCMIS, within the confines of the Privacy Act and consistent with the Fair Credit Reporting Act. Justification - FMCSA collects a substantial amount of driver and company compliance and safety performance information in a safety database called the Motor Carrier Management Information System (MCMIS). This safety information is different from the information captured on a driver’s motor vehicle record maintained by the State licensing agencies. State motor vehicle records typically contain information on driver traffic law convictions (e.g., speeding, reckless driving, etc.). MCMIS contains information on a driver’s compliance with the medical certification process, the hours of service regulations, and other safety regulations that apply to the driver. Motor carrier employers currently have access to driver-specific information only for those drivers they currently employ. Truck safety could be improved if trucking companies had the ability to access driver-specific safety information contained in MCMIS during the driver screening and hiring process, in order to make more informed hiring decisions. Prospective employees would be asked to authorize the inquiry before a company is given access to the information. Reauthorization provides a real opportunity to make this existing safety database more useful than it already is, from a safety standpoint. D. IMPROVE THE MOTOR CARRIER COMPLIANCE REVIEW TARGETING SYSTEM KNOWN AS SAFESTAT ATA recommends that Congress direct the Secretary to address and improve the data and methodological shortcomings in FMCSA’s Safety Status Measurement System (SafeStat) identified by the Department of Transportation’s Inspector General during its recent audit. Justification – FMCSA administers a safety scoring system that assigns a numerical score to every trucking company on which they have sufficient safety and demographic data. The score, and some of the data used to generate the score, is currently made publicly available on FMCSA’s website. Serious concerns with the scoring system methodology, and with some of the safety data used in the system, led to a Congressional request for a DOT Inspector General audit that began in November 2002. Preliminary results from the audit indicate that the system can be improved substantially, and the final report to be released in the very near future will contain specific recommendations for improving the system. E. CREATE A SAFE DRIVING ENVIRONMENT THROUGH SOUND INFRASTRUCTURE INVESTMENTS ATA recommends that Congress fund research that explores better highway design and management practices, particularly those that could result in improved truck safety. We also urge Congress to earmark money to State and local planning agencies to help them to better understand the unique needs of freight transportation, including those related to safety. Finally, we would like to see a much greater share of federal highway funds directed toward those projects and highway networks that are most critical to motorist safety and to economic productivity. Justification - Poor road conditions and obsolete road designs contribute to nearly a third of all fatal crashes in the United States. In other words, more than 12,000 people die each year in collisions with roadside hazards such as trees, utility poles, and embankments, and almost another 3,500 die in rollover crashes often related to veering off the roadway. Rollover crashes are a particularly significant concern for truck drivers. Many ramps were not designed to accommodate trucks’ physical characteristics, and some have become notorious for the number of rollover truck accidents that have occurred because they were not designed with trucks in mind. And unlike other areas of highway safety — such as drunk driving, seat belt use, and vehicle design — where significant gains have been made, the percentage of fatalities related to roadside hazards has actually risen over the past two decades. Fortunately, this trend can be reversed. Well designed and maintained roads reduce vehicle deaths and injuries. They also save Americans billions of dollars in medical costs and productivity. Often, relatively simple, inexpensive changes can be made to roads that will produce tremendous safety improvements. Building wider shoulders, installing rumble strips, improving traffic signal timing to accommodate the slower acceleration of larger vehicles are all basic concepts that could improve truck safety. Unfortunately, knowledge about how to accommodate trucks’ unique operating characteristics is lacking among many agencies. ATA has recommended that, on a general basis, State and local planning agencies need to hire people with specific freight transportation expertise. Congress should also focus limited Federal resources on projects that promise the greatest safety benefit. The National Highway System (NHS) carries approximately 75 percent of all truck traffic and 40 percent of overall traffic. Yet about half of the NHS is comprised of two-lane, undivided highways. Because the NHS is the backbone of the Nation’s freight transportation system, a single accident on the NHS can have ripple effects throughout the supply chain due to late deliveries caused by congestion related to the incident. It is also possible to identify specific priority projects. According to one study, fixing the Nation’s 167 worst highway bottlenecks would prevent 287,000 crashes, including 1,150 fatalities. F. GREATER TRUCK PARKING CAN IMPROVE SAFETY ATA recommends that the Committee support the initiative to increase the amount of truck parking in certain freight corridors and, more specifically, support the recommendations contained in Attachment A. Justification - The continuing growth of long-haul truck travel has produced tremendous demand by truck drivers for long-term rest. These needs arise when drivers require sleep while on the road, and when they need to fulfill their federally mandated hours-of-service obligations. While adequate long-term truck parking is available in many areas, there is a shortage of capacity on many of the Nation’s major trucking corridors. According to a 2002 survey of truck drivers conducted for FHWA, 89% of respondents said that they are usually unable to find parking at public rest areas, and 66% usually had a problem finding space at a truck stop. While the solution is often to expand the number of available parking spaces, in some cases the problems can be resolved through methods other than having to build new parking spaces. For example, better signage, improved security measures, and enhanced parking area design can all play a role in resolving the parking shortage. In addition, non-traditional approaches, such as allowing truck parking at weigh stations, commuter lots or warehouse facilities are being utilized successfully in some parts of the country currently and may be a feasible solution in other locations as well. ATA, in partnership with the Truckload Carriers Association, the Commercial Vehicle Safety Alliance and the National Association of Truckstop Operators, has developed a comprehensive proposal for addressing the truck parking shortage (see Appendix A). II. REGULATORY RECOMMENDATIONS A. THE SAFETY OF INTERMODAL CHASSIS CAN BE IMPROVED ATA recommends that Congress direct the Secretary of Transportation to equitably apply and enforce laws designed to ensure the safe condition of all regulated equipment, including intermodal chassis and trailers. Antiquated regulations should be replaced with ones that are in tune with current industry operations Justification - Mr. Chairman, while the trucking industry cooperates with its intermodal partners in many areas, and will do so during this reauthorization cycle, there is one area on which we disagree. That area is the responsibility for safety and maintenance of the intermodal chassis on which intermodal cargo containers are transported on the highway. ATA is very concerned that foot-dragging by the U.S. Department of Transportation, and by many in the rail and ocean carrier industries, to work with the trucking industry to resolve the “equipment roadability” issue is having serious safety and economic impacts. Since the advent of containerized shipping in the 1970s, a serious safety loophole has remained in the Federal Motor Carrier Safety Regulations. This loophole is commonly referred to as “equipment roadability.” As containerized intermodal freight has evolved over the decades, the Federal safety regulations have not kept pace. As a result, 750,000 intermodal chassis and 83,000 intermodal trailers are operating in a safety loophole. These frame-like trailers (intermodal chassis) are used exclusively to haul intermodal containers, and are interchanged between steamship lines, railroads, and intermodal trucking companies. The chassis are also classified as commercial motor vehicles by FMCSA. However, they evade traditional FMCSA safety oversight. FMCSA safety regulations fundamentally assume that trucking companies have daily management control over all trucks and trailers they take onto public roadways. Based upon that assumption, the regulations read, “Every motor carrier shall systematically inspect, repair, and maintain… all motor vehicles subject to its control.” FMCSA’s interpretation of systematic maintenance is, “… a regular or scheduled program to keep vehicles in a safe operating condition.” It explains that the agency does not specify maintenance intervals, leaving that decision to trucking company management, based on fleet and vehicle considerations. So how does FMCSA know if a motor carrier is failing to “keep vehicles in a safe operating condition?” When MCSAP safety inspections, typically conducted by State law enforcement officials, drive a motor carrier’s safety score above a certain threshold, the agency and/or State send an envoy to the trucking company’s place of business to audit the maintenance and employee training records, inspect the carrier’s equipment, etc. While railroads and foreign-owned steamship lines (collectively called “providers”) own or lease the intermodal chassis, and control their daily disposition, they claim they are not motor carriers, thus not technically responsible for the condition of their equipment under Federal safety regulations. However, they do affix the annual inspection sticker on their equipment, which constitutes an act of certification that the equipment was inspected in detail at least once a year. Providers conduct the annual inspection pursuant to the FMCSA’s regulations, but many do not conduct systematic maintenance on the same equipment, which is likewise mandated by FMCSA’s regulations. This explains the poor condition of intermodal chassis and points to FMCSA’s failure to close their own regulatory loophole to hold the controlling party accountable for the safety compliance of their own equipment that is operated on public roads. A recent study conducted jointly by the FMCSA and the University of Maryland provides support for ATA’s concern about the equipment roadability issue. This study looked at 11 sectors of the trucking industry, one of which was intermodal operations. Researchers used nine safety performance measurements and other data managed by FMCSA to analyze the safety performance of each sector. One significant finding is that intermodal trucking operations were found to be average or better-than-average in six of the nine measurements. However, in the two measurements relating to vehicle condition, the intermodal sector ranked poorly. Specifically, among the 11 sectors, intermodal operations ranked last for vehicle safety condition and second-to-last (10th) for accumulating vehicle out-of-service violations. Thus, the latest research findings from FMCSA confirm what intermodal trucking executives have been saying for years - that the equipment controlled by steamship lines and railroads, and subsequently provided to motor carriers for brief periods of time, are potentially unsafe because they are not maintained by those controlling parties as required by FMCSA regulations. FMCSA has acknowledged that it has jurisdiction over the issue, but has failed to place safety responsibility on the proper party. That places the 833,000 intermodal chassis and trailers squarely in a longstanding safety loophole. B. OVERLY RESTRICTIVE FEDERAL SIZE AND WEIGHT STANDARDS PREVENT SAFETY IMPROVEMENTS ATA urges Congress to give States additional flexibility to determine the appropriate size and weight regulations for trucks operating on highways under their jurisdiction. Justification - At the request of Congress, the Transportation Research Board (TRB) recently issued a new report on the impacts of Federal truck size and weight regulations. Among the report’s conclusions was that the largely static and inflexible system of Federal regulation that currently exists “…discourages private- and public-sector innovation aimed at improving highway efficiency and reducing the costs of truck traffic…,” including costs related to accidents involving trucks. In a nutshell, the TRB report concludes that States should be given greater authority, with strong Federal oversight, to make decisions with regard to the size and weight limits of trucks on highways under their jurisdiction. This reflects ATA’s own policy. TRB further recommends that Federal regulatory oversight of weight limits should not be extended to the NHS, as S. 1140, the Safe Highways and Infrastructure Preservation Act (SHIPA) seeks to do. There is no doubt that continuing or further restricting current Federal size and weight limits will cost lives. While it would not make sense from a safety or economic standpoint to allow larger or heavier trucks to operate on every highway or in every state, Congress cannot continue to ignore the growing body of evidence that supports the fact that opportunities to prevent accidents through size and weight reform are available. Those States that identify these opportunities should be allowed to take advantage of them. Allowing the expanded operation of more productive trucks would have two safety benefits. First, carriers would need fewer trucks to haul a given amount of freight, thereby reducing accident exposure. Second, studies have consistently found that certain trucks with greater carrying capacity have a much better safety record than trucks that are in common use today. A study sponsored by the Federal Highway Administration found that the accident rate for longer combination vehicles (LCVs) is half that of other trucks. A recent Canadian study found that LCVs have an accident rate that is five times lower than the rate for tractor-semitrailers. This study also found that during the 10-year period after LCVs were authorized to operate on a large scale in the Province of Alberta, the number of registered trucks dropped by 19 percent, even though the economy grew and non-truck vehicle registrations grew by 23 percent. The report concluded that increased truck productivity due to expanded LCV use was the most likely reason for this reduction in truck registrations. ATA is not seeking changes to size and weight regulations during reauthorization. However, the approach suggested by TRB provides Congress with the opportunity to review this issue based on the facts, and ATA encourages the Committee to consider supporting it. III. RESEARCH AND ADVISORY COMMITTEE RECOMMENDATIONS A. RELIABILITY PERFORMANCE STANDARDS FOR COMMERCIAL MOTOR VEHICLES ARE NEEDED ATA believes it is imperative that NHTSA be directed to undertake a research program to determine the appropriate method for incorporating reliability performance standards into future Federal Motor Vehicle Safety Standards pertaining to trucks, and provide a dedicated source of funding for this project. NHTSA should be required to report to Congress on its work within two years, including the steps necessary to establish a reliability program and a timetable for doing so. NHTSA should also be directed to allow trucking equipment users and their representatives an opportunity to participate in the development and implementation of this program equal to that of manufacturers. Justification - Since 1968, NHTSA has written Federal Motor Vehicle Safety Standards (FMVSS) which measure short-term output for vehicle safety, that is, manufacturers must certify that their equipment meets the regulatory standards when it is placed on the market to be sold. NHTSA has never considered reliability —which is intrinsic to the overall elements of a design—in determining its vehicle safety standards. Today, as equipment systems and subsystems become more technologically complex, and truck manufacturers move to limit the ability of commercial fleets to specify which particular components to install in a particular vehicle, equipment reliability is rapidly becoming an overwhelming concern for motor carriers. An example of existing reliability standards for vehicle systems can be found in regulations established by the Environmental Protection Agency for emissions control, in 40 CFR 86.085. This issue is vital to highway safety, as compromises in reliability can deliver short-term performance enhancements, and may lower system costs, but may also lead to safety system failures when the equipment is most needed. B. PRIORITIZATION IN THE RESEARCH PROGRAM IS NEEDED ATA recommends that the Secretary of Transportation be directed to prioritize all Federal driver and vehicle-related research so that the majority of funds support research in the most-common cause of accidents—human factors. The Secretary should direct NHTSA to undertake a multi-year research project to determine the effects of risk-adaptation in both commercial and passenger vehicles, and to determine if there are ways in which such effects may be mitigated. NHTSA should also be directed to allow vehicle equipment users and their representatives, including the trucking industry, an opportunity for participation in this program equal to that of manufacturers. Justification - Although the best available data continue to indicate that the overwhelming majority of traffic accidents are caused by driver behavior problems and human error, a significant percentage of Federal research and regulatory effort has been and continues to be focused on vehicles and equipment, with far less effort spent on human factor issues. Motor carriers continue to incorporate a number of new electronics systems into their commercial motor vehicles. Many of these may eventually interact with drivers and make decisions on their behalf. There is evidence of a growing danger from “risk-adaptation”—the tendency of drivers to take greater risks when faced with the false security of a system that promises greater safety. One example of this phenomenon can be seen in antilock braking systems (ABS) for passenger vehicles. NHTSA has found that these systems do not offer a net safety benefit, as ABS-equipped cars were simply involved in different kinds of accidents than cars without ABS, not fewer or less deadly ones. A better understanding of how this phenomenon works and, more importantly, ways in which it might be mitigated is necessary, as vehicles become more complex in the already-complicated highway environment. C. A MOTOR CARRIER SAFETY ADVISORY COMMITTEE SHOULD BE ESTABLISHED ATA recommends that Congress require the Secretary to establish a motor carrier safety advisory committee and extend the authorizing period by a minimum of five years. Justification - Section 105 of the Motor Carrier Safety Improvement Act of 1999 authorized the Secretary of Transportation to establish a commercial motor vehicle safety advisory committee to provide advice and recommendations on a wide range of motor carrier safety issues. The advisory committee was to remain in effect until September 30, 2003. More than three years after passage of the Act, DOT has taken no official action to establish an advisory committee. ATA finds this fact very troubling. Establishment of the committee would bring together various industry segments, law enforcement, advocacy groups, manufacturers, and government officials to discuss the most pressing motor carrier safety issues. These groups often have conflicting opinions on important highway safety issues. Bringing them together in an advisory capacity would allow FMCSA to proactively develop regulatory and program changes that have a greater chance of being embraced and supported by the agency’s stakeholders. An advisory committee could also provide the regulators with a regular opportunity to better understand the safety, economic, and human impacts that their actions might have on various segments of society. IV. ATA’S REACTION TO THE ADMINISTRATION’S SAFETEA PROPOSAL ATA commends the Bush Administration for releasing a surface transportation reauthorization bill (SAFETEA) that recognizes the need for substantial highway safety improvements and greater freight transportation efficiency. While ATA has a number of specific concerns, we believe the bill represents a positive first step in the reauthorization process. Some of the SAFETEA initiatives that ATA supports include: · Creation of a new highway safety improvement program funded at $1 billion in 2004 and growing each year to $1.5 billion in 2009. · Improvements in the project development process to ensure integration of freight transportation. · A requirement that States identify a freight transportation coordinator. · A set aside of funding for highways that connect intermodal freight facilities to the National Highway System, and a 90% state matching fund requirement for these highways (as opposed to the current 80% match). · A proposal to fund "ready-to-go" projects at major traffic bottlenecks and to cut bureaucratic delay in the project development process so needed highway projects can move to completion more expeditiously. · A greater focus on improving motor carrier information and data analysis systems. ATA trusts that these improvements will extend to the Federal Motor Carrier Safety Administration’s safety status (SafeStat) measurement system. ATA opposes the following SAFETEA proposals: · While the Administration has stated a commitment to improving freight transportation, SAFETEA would subsidize the intermodal movement of freight at the expense of the highway system, which carries the vast majority of the Nation’s freight. The bill proposes expansion of funding eligibility to the Surface Transportation Program and the Transportation Infrastructure Finance and Innovation Act (TIFIA) for intermodal freight transportation projects, including rail facilities, even though just over one percent of the Nation’s freight moves via intermodal rail. Trucks deliver 68 percent of the freight and are the exclusive provider of freight transportation services to more than 80 percent of American communities. A true commitment to improving freight efficiency cannot include the further diversion of limited funds from the Nation’s ailing highways. A fair transportation bill will not require one transportation mode to subsidize its competitors. · The U.S. Department of Transportation’s own research suggests that the proposed investment levels will not be adequate to even maintain current highway system conditions and traffic congestion levels. We urge Congress to increase the federal commitment to highways without raising taxes and to prioritize funding for highways of national significance. · The proposal would eliminate the ability of trucking companies to pay their heavy vehicle use taxes (HVUT) on a quarterly basis and requires each truck to display a decal demonstrating payment of the tax. While we recognize that HVUT evasion is a serious problem, law-abiding trucking companies should not be punished because of the actions of a few miscreants. We strongly oppose the decal requirement. It is unnecessary, an added administrative burden and redundant to procedures already available as proof of fees paid. In addition, we are concerned about the adverse financial impact of elimination of the quarterly payment privilege on trucking companies. · ATA opposes the exemption of safety, security and idle reduction technologies from the federal excise tax on trucks and truck equipment. This provision would place the federal government in a position of having to create a new federal bureaucracy to evaluate potentially thousands of devices. ATA also has strong reservations about the exposure to legal liability created by federally-endorsed safety technologies. · ATA opposes the Administration’s proposal to continue the Interstate Highway toll programs created by TEA 21. Tolling existing Interstate Highways creates a disincentive for motorists to use Interstates, which are the safest roads. Alternative secondary routes are likely to be at least four times more dangerous than an Interstate Highway. · ATA opposes the Administration’s rest area commercialization pilot program. States in general have not demonstrated that they are willing to address the truck parking shortage issue. Ninety percent of truck parking is privately provided, and solutions to the truck parking shortage are more likely to be addressed by the private sector than by the public sector. Along with the Truckload Carriers Association, the National Association of Truck Stop Operators and the Commercial Vehicle Safety Alliance, ATA has developed the comprehensive proposal in Attachment A to address the truck parking shortage that focuses on public-private partnerships. SUMMARY In summary, Mr. Chairman, ATA makes the following recommendations. I. Traffic Safety and Truck Safety Program Recommendations: ATA recommends that Congress authorize additional funding for the Section 402 Highway Safety Grant Program administered by NHTSA, and the MCSAP truck safety grant program administered by FMCSA, specifically for increased traffic and speed enforcement efforts in the highway reauthorization bill. ATA further recommends that Congress make it clear in legislative language that MCSAP funding should be used for State speed enforcement efforts aimed at both commercial and non-commercial drivers, and that speed enforcement activities aimed at commercial drivers do not have to be linked to a North American Standard Inspection. Additional funding, additional emphasis, and greater Federal leadership are needed on this issue to reduce the speed and unsafe driving behaviors of all drivers on our highways in order to save lives. ATA is also a firm believer in the life-saving benefits of seat belt use. ATA recommends that Congress continue to support and fully fund the occupant protection programs of NHTSA, including the ongoing 'Click It or Ticket' grant program ATA recommends that Congress authorize and fund a comprehensive Share the Road Safely education and outreach program that is designed to educate and change the behavior of all highway users. This effort must be coupled with increased MCSAP traffic enforcement to have the desired outcomes. A program evaluation requirement should also be included.. This program should be funded at not less than $5 million dollars annually. ATA recommends that Congress authorize FMCSA to provide access to safety data and information contained in MCMIS, within the confines of the Privacy Act and consistent with the Fair Credit Reporting Act. ATA recommends that Congress direct the Secretary to address and improve the data and methodology shortcomings in FMCSA’s Safety Status Measurement System (SafeStat) identified by the Department of Transportation’s Inspector General during its recent audit. ATA recommends that Congress fund research that explores better highway design and management practices, particularly those that could result in improved truck safety. We also urge Congress to earmark money to State and local planning agencies to help them to better understand the unique needs of freight transportation, including those related to safety. Finally, we would like to see a much greater share of federal highway funds directed toward those projects and highway networks that are most critical to motorist safety and to economic productivity. ATA recommends that the Committee support the initiative to increase the amount of truck parking in certain freight corridors and, more specifically, support the recommendations contained in Attachment A. II. Regulatory Change Recommendations: ATA recommends that Congress direct the Secretary of Transportation to equitably apply and enforce laws designed to ensure the safe condition of all regulated equipment, including intermodal chassis and trailers. Antiquated regulations should be replaced with ones that are in tune with current industry operations ATA urges Congress to give States additional flexibility to determine the appropriate size and weight regulations for trucks operating on highways under their jurisdiction. III. Research and Advisory Committee Recommendations: ATA believes it is imperative that NHTSA be directed to undertake a research program to determine the appropriate method for incorporating reliability performance standards into future FMVSS pertaining to trucks, and provide a dedicated source of funding for this project. NHTSA should be required to report to Congress on its work within two years, including the steps necessary to establish a reliability program and a timetable for doing so. NHTSA should also be directed to allow trucking equipment users and their representatives an opportunity to participate in the development and implementation of this program equal to that of manufacturers. ATA recommends that the Secretary of Transportation be directed to prioritize all Federal driver and vehicle-related research so that the majority of funds support research in the most-common cause of accidents—human factors. The Secretary should direct NHTSA to undertake a multi-year research project to determine the effects of risk-adaptation in both commercial and passenger vehicles, and to determine if there are ways in which such effects may be mitigated. NHTSA should also be directed to allow vehicle equipment users and their representatives, including the trucking industry, an opportunity for participation in this program equal to that of manufacturers ATA recommends that Congress require the Secretary to establish a motor carrier safety advisory committee and extend the authorizing period by a minimum of five years. Mr. Chairman and Members of the Subcommittee, thank you for the opportunity to offer our thoughts regarding these safety issues. We look forward to working with the Subcommittee to improve the safety and mobility of our Nation’s highway transportation system. Attachment Attachment A REAUTHORIZATION PROPOSAL TO IMPROVE TRUCK PARKING BACKGROUND The growth of long-haul truck travel has produced tremendous demand by truck drivers for long-term rest. These needs arise when drivers require sleep and when they need to fulfill their federally mandated hours-of-service obligations. While adequate long-term truck parking is available in most areas, there is a shortage of capacity on many of the Nation’s major trucking corridors. While the solution is often to expand the number of available parking spaces, in some cases the problems can be resolved through methods other than having to build new parking spaces. For example, better signage, improved security measures, and enhanced parking area design can all play a roll in resolving the parking shortage. In addition, non-traditional approaches, such as allowing truck parking at weigh stations, commuter lots or warehouse facilities are being utilized successfully in some parts of the country currently and may be a feasible solution in other locations as well. However, there continues to be a need to specifically identify where truck parking shortages do exist and why. For the most part, and with a few exceptions, state transportation agencies have shown little propensity for resolving this issue. In fact, only one State has taken advantage of the availability of federal highway funding for building truck parking spaces – which has been available without a State matching requirement since 1995 – to alleviate the parking shortage. In the hierarchy of priorities, and within the range of available staff expertise, the provision of truck parking ranks well below highway construction and maintenance. Therefore, public rest areas are often the victims of state budget cuts and highway funding shortfalls. Moreover, truck parking does not have a strong local constituency. In fact, the topic often stimulates much local antagonism. This is because state and local officials do not place a high priority on meeting the parking needs of long-haul truck drivers. This means not only that relatively few public resources are dedicated to truck parking, but also that private providers of truck parking often have to deal with a variety of government-imposed roadblocks whenever they attempt to expand the availability of truck parking. This can encompass anything from zoning regulations to requirements that truck stop owners pay for infrastructure improvements to accommodate the additional traffic. While it has been difficult to document the extent of the truck parking shortage, and the specific causes of a lack of capacity in certain areas, perhaps the best information comes from truck drivers themselves. A 2002 truck driver survey conducted for the Federal Highway Administration at the request of Congress revealed the following: · 11% of truck drivers surveyed frequently or almost always find parking at rest areas. · 34% frequently or almost always find parking at truck stops. · 89% sometimes, rarely or almost never find parking at rest areas. · 66% sometimes, rarely or almost never find parking at truck stops. · 33% park on entrance or exit ramps for long-term rest. · 21% park illegally in parking lots for long-term rest. · 11% park on highway shoulders for long-term rest. On average, drivers who park in these locations do so two times per week. · When asked why drivers park on ramps and shoulders, 94% gave “no empty spaces at rest areas or truck stops” as a reason. A smaller number of drivers cited rest area time limits, more convenient access, or a lesser likelihood of being bothered by drug dealers and prostitutes as other reasons for parking on a ramp or shoulder. · 79% of drivers preferred truck stops for extended rest, while just 6% preferred rest areas. · The top five recommendations to improve the truck parking situation identified by drivers were: 1. Build more truck stop spaces (79%) 2. Build more rest area spaces (66%) 3. Stop enforcement officers from waking drivers (57%) 4. Eliminate time limits on truck parking spaces (49%) 5. Improve parking layouts and configurations (46%) These results reflect other national and state studies of truck parking shortages. For example, a 1997 New York survey of truck drivers found that 80% were always, or often, unable to find parking at public rest areas. A recently released survey of truck drivers in Maine found that 79% of drivers parked on highway off-ramps or shoulders at some point; 42% on a daily or weekly basis. Most drivers said they parked at these locations because of a lack of convenient parking facilities. Interestingly, Maine truck drivers stated that relative to other Northeastern states, Maine did not have a chronic shortage of parking spaces. A 1999 Tennessee study found that on an average weeknight nearly 44 percent of the parked trucks were pulled over on ramps and shoulders. All studies on the truck parking shortage have made similar recommendations on how to resolve the problem, and they fall into the following general categories: · Federal funding for public and private parking facilities where demand is greatest. · Improved lighting and security for parking facilities. · Geometric improvements to improve truck access and throughput. · Opening up non-traditional facilities to trucks for long-term parking (e.g. weigh stations, commuter lots, warehouse parking lots, etc.). · Better signage to increase awareness of private facilities. · Elimination of parking time restrictions on trucks. The recommended course of action described in this document is intended to address truck parking problems according to the best available research. The proposal is supported by the American Trucking Associations, the Commercial Vehicle Safety Alliance, NATSO (representing travel plaza and truck stop owners) and the Truckload Carriers Association. PROPOSAL I. OBJECTIVES A. Identify the geographic locations and highway corridors where availability of parking for drivers to stop and rest (both short term and long term) is inadequate and the reasons therefore. B. Increase availability of truck parking at existing truck stops and public rest stops. C. Upgrade truck parking area security. D. Improve existing roadside signage system and develop real-time communication system. E. Develop Intelligent Transportation System deployments that provide drivers with real- time information on the location and availability of parking spaces. II. SOLUTIONS A. Identify the specific geographic locations and highway corridors where the availability of parking for drivers to stop and rest (both short term and long term) is currently inadequate and the reasons therefore, and require future periodic comprehensive surveys B. Open inspection and weigh stations, park-and-ride facilities to truck parking during off-hours and non-peak periods of demand; exempt trucks from enforcement actions at these sites to encourage the use of the sites for parking by fatigued drivers. C. Provide tax credits and tax incentives to truck stop operators D. Provide tax credits and tax incentives for the develop of secure 24-hour access pickup and delivery "truck staging" facilities in or adjacent to metropolitan areas E. Develop a communication system that will provide drivers with real-time information on the location and availability of parking spaces, using cell telephones, radio frequencies, satellite-based text messaging systems and other avenues to broadcast parking locations and their availability to drivers. F. Establish a non-profit quasi-governmental corporation, the “Parking Assistance Resource Corporation” (PARC), for the purpose of more efficiently and cost-effectively managing federal funding expended to increase the number and availability of commercial truck parking in those areas with a demonstrated shortage of spaces and/or other barriers to adequate availability of long-term truck driver parking (4 or more hours) 1. PARC’s primary authority and responsibility would include: (1) conducting periodic surveys to identify the location(s) of truck parking shortages in the future and the reasons for the shortage(s); (2) developing best practices and recommended minimum design, security and lighting requirements; (3) reviewing and prioritizing grant applications from private enterprise and recommending grant applications aimed at alleviating the shortage at specific location(s) to the DOT Secretary for the Secretary’s approval; (4) identifying specific NHS corridors where regional/multi-state strategies would be most effective and encourage and facilitate cooperation among relevant entities. 2. PARC would be funded with a grant from the Federal Highway Administration with funds authorized by Congress. Proposed funding levels are $5 million (2005); $8 million (2006); $12 million (2007); 16 million (2008); $20 million (2009). 3. PARC would be governed by a Board of Directors comprised of representatives from the following organizations: Federal Motor Carrier Safety Administration, American Trucking Associations (ATA), Truckload Carriers Association (TCA); National Association of Truck Stop Operators (NATSO), American Automobile Association (AAA), and Commercial Vehicle Safety Alliance (CVSA). G. Expand the eligibility of the Surface Transportation Program to allow 100% federal funding for “Safety Rest Areas” on the NHS, as defined in Title 23 USC Sec. 120(c). Safety rest areas are already eligible under the NHS program. In addition, add access routes, ramps and interchanges serving safety rest areas, regardless of whether or not they provide commercial services, to the list of projects eligible for 100% federal share under Sec. 120.
Mr. LaMont Byrd
Mr. Chairman and Members of the Committee: My name is LaMont Byrd and I am Director of Safety and Health for the International Brotherhood of Teamsters. Thank you for the opportunity to testify here today on behalf of our 1.4 million members on such an important issue: motor carrier safety. The Teamsters Union represents hundreds of thousands of workers who make their living driving on our nation’s roads, from interstate highways to city streets. It is imperative to make their workplace as safe as possible since it affects not only their safety but also the safety of the motoring public with whom they share the roads. With that said, there are a number of issues that I’d like to mention that are integral to improving and strengthening motor carrier safety and decreasing the growing number of accidents, injuries, and fatalities on our nation’s roads. Hours of Service In April, the Federal Motor Carrier Safety Administration (FMCSA) issued new hours of service regulations that allow drivers to drive 11 hours and work a total of 14 hours after 10 consecutive hours off-duty. Current law allows 10 hours of driving time within a 15-hour on-duty period after 8 hours of rest. The Teamsters have not had nearly sufficient time to develop an opinion on all aspects of the regulation, since the final rule is drastically different from the first Notice of Proposed Rulemaking the FMCSA issued. We would have preferred an opportunity to comment on the new rule before it was finalized. However, we do agree with the FMCSA’s increase in the rest time for drivers. For some time, we have advocated the need for more rest time. Eight hours is not sufficient time for a driver to conduct personal business (such as eating, showering, and spending time with his/her family) and to get the necessary sleep. However, we cannot help but wonder what the FMCSA was thinking when it increased the consecutive number of hours behind the wheel for a driver, which essentially negates any benefits the increased rest time would provide. The fact is that by the Department of Transportation’s (DOT) own estimates, 755 fatalities and 19,705 injuries result from fatigued drivers each year on U.S. roads. Numerous fatigue studies show that after eight hours of driving time a driver’s alertness significantly deteriorates. The U.S. military agrees. Twelve years ago, nearly 50 percent more soldiers died in accidents (235) than in battle (147). In the recent war in Iraq, there were only a third as many non-combat fatalities (36) as deaths in battle (101). The same pattern appears to hold for nonfatal injuries, with the data on evacuated Army troops showing that 107 had non-combat injuries, compared with 118 who had combat wounds. Col. Terry J. Walters, the physician who is chief of health policy in the office of the Army’s surgeon general, attributed the steep drop in non-combat deaths and injuries, in part, due to the Army’s efforts to improve driver safety and to ensure that soldiers were well-rested when operating vehicles. In the first Gulf War, motor vehicle accidents alone accounted for about half of all serious injuries. With that said, the Teamsters Union has concerns about the FMCSA’s increase in consecutive hours of driving and will be looking carefully at the effect this will have on the safety of our members and the safety of the motoring public. In addition to our concerns with increasing the consecutive number of hours behind the wheel, the Teamsters has significant concerns with the 34-hour re-start provision in the FMCSA’s regulations. The cumulative effect of this allowance will significantly increase driving time and fatigue and has the potential of even eliminating Teamster jobs. Finally, it is important to point out that Teamster drivers and their companies are the safest on the road. We obey the rules. If by chance, a Teamster driver is asked to take a trip that violates the hours of service rule, he/she can refuse and has the union to back him up. For this reason we have pushed for years for better enforcement of the current rules and more funding to carry out enforcement. The rule that the FMCSA has put forward does little if anything to boost enforcement of the existing rules, which is the major problem with hours of service. Unless this Committee finds a way to do that, we will have accomplished nothing with respect to reducing fatigue and the number of traffic accidents that result from it. Criminal Background Checks for Hazardous Materials Endorsement The Transportation Security Administration (TSA) recently issued an Interim Final Rule requiring criminal background checks for Commercial Motor Vehicle (CMV) drivers who currently possess or apply for a Hazardous Materials Endorsement in order to haul hazardous materials. The Teamsters Union intends to file comments to the Docket, but we want to make the Committee aware of several issues that may present problems for our members who may have committed some indiscretion in their past but have been rehabilitated, proved to be model citizens, and are productive members of their communities. For the most part, TSA has “borrowed” the list of disqualifying offenses from the airline industry background checks. We have learned much from that initial program, including the need for waivers and appeals, which TSA has included. TSA’s notification process keeps the criminal history record check information out of the hands of employers, who have used this information to dismiss employees in the airline industry for offenses committed beyond the look-back period and outside the scope of disqualifying offenses. However, despite the appeal and waiver provisions, certain disqualifying felony convictions do not necessarily point to potential terrorist behavior. I would like to recount a situation involving two Teamster members who are sisters and work as flight attendants for Northwest Airlines. On a shopping trip to New York City, one of the sisters discovered some “knock off” designer purses being sold on a street corner. Thinking that her friends back home would like to have some of these bags, she purchased several and mailed them back to her sister. Little did she suspect that that innocent act would lead to her and her sister’s felony convictions on interstate transportation of counterfeit goods. With no appeal process under airline criminal background checks, both flight attendants face termination from jobs they have held for a combined 35 years. They are not terrorists nor are they persons who should be suspect of committing terrorist acts. This situation should lead to changes in the airline background check process and should serve as a warning for the hazmat endorsement check and background checks in other industries as well. The trucking industry has been a place where reformed, former criminals have found a place to work, and where rehabilitation programs have encouraged entry into the trucking profession. For that reason, we intend to question the seven-year look-back provision. Although it is an improvement over the ten-year look-back in the airline industry, it is somewhat arbitrary when one considers whether a person is truly rehabilitated after four years, five years or even three years, for that matter, of committing a criminal act. In addition, although TSA does not require a revocation of a hazmat endorsement based on an initial review (Initial Notification of Threat Assessment), the agency does notify the state that the individual may be within the prohibited category under the rulemaking, in which case the state may take whatever action it deems appropriate or do nothing until TSA issues its final determination. The Teamsters Union is concerned that a state could take immediate action and revoke a hazmat endorsement upon initial determination by TSA. And while there are specific time limits in the rulemaking for initiating the waiver and appeals processes by the individual, TSA fails to put any specific deadlines on its review processes. We could envision a state revoking or denying a hazmat endorsement for a driver upon initial determination, and have TSA take several months to get through the waiver or appeal process, only to finally determine that there is no threat posed by the individual (Final Notification of Threat Assessment). The driver could be adversely affected in not being able to work during this period. We should note for the Committee that all of the union Less-than-Truckload (LTL) carriers require their drivers to possess hazmat endorsements because they do not know from one day to the next whether part of a shipment may contain hazardous materials. So if a driver loses his hazmat endorsement, he loses his job, regardless of whether he still has his commercial drivers license (CDL). We also question whether the TSA has sufficient resources and personnel to address this issue, especially in light of recent reports that half of the 30,000 airport security screeners are still awaiting criminal background checks. We would remind the Committee that it is estimated that 3.5 million drivers currently possess a hazmat endorsement. For these reasons, we will also encourage the TSA to establish strict deadlines for their review processes. A final issue yet to be resolved is the requirement of criminal background checks for Mexican drivers who haul hazardous materials. The USA Patriot Act provided for such a requirement for U.S. drivers, and to the best of my knowledge the DOT has resolved the issue of criminal background checks for Canadian drivers hauling hazmat in the U.S. However, nothing has been reported on the status of criminal background checks for Mexican drivers. I need not remind the Committee that it was the DOT which insisted that all foreign domiciled motor carriers are subject to all U.S. safety regulations. Therefore, Mexican drivers hauling hazmat should and must undergo a criminal background check. Long-haul Mexican trucks will soon be traveling anywhere in the United States carrying chemicals, gasoline and other flammable liquids and gases. We need to know that terrorists will not find a more convenient way to infiltrate our hazardous materials industry. Cross-Border Trucking As this Committee well knows, the Teamsters Union has opposed the opening of the border to Mexican trucks for travel beyond the currently permitted commercial zones because of the serious concerns we have for the condition and safety of Mexican trucks. Had not the Teamsters and other safety groups voiced their concerns dating back to 1995, when the trucking provisions were to be first implemented, we fear that many of the safety measures put into practice within the past several years would never have occurred. While some may label us as obstructionists to free trade, we believe we have provided a valuable service to the motoring public in assuring that highway safety in this country will not be compromised. With that said, the DOT’s Inspector General just issued a Follow-Up Audit On The Implementation Of Commercial Vehicle Safety Requirements At The U.S.-Mexico Border. In it, the IG states that the FMCSA has made substantial progress in meeting the Murray-Shelby requirements incorporated in the past two Transportation and Related Agencies Appropriations Acts. However, there remain several areas of concern to us, and these, left uncorrected, could jeopardize the significant progress made to date. First, the IG reports that inspection facilities were sufficient at 24 of the 25 commercial crossings. The Teamsters can only assume that these are temporary facilities because this statement seems inconsistent with facts later reported in the audit. Congress provided $66 million for the four border States to construct and develop permanent border inspection facilities. In Arizona, which received $2.1 million, construction of a permanent inspection facility in Nogales has not been completed, and construction of a permanent inspection facility in Douglas is only in the planning phase. In California, which received $8.9 million, construction of an inspection facility in Tecate is only in the design phase. In New Mexico, which received $2.2 million, construction of a permanent inspection facility in Santa Teresa won’t be completed until 2005. In Texas, which received $52.8 million, permanent facilities at seven key border crossings – Eagle Pass, El Paso Bridge of the Americas, Laredo Columbia, Los Indios, Pharr, and Veteran’s Bridge, also won’t be completed until 2005. In addition, plans to construct a facility at Laredo World Trade Bridge, one of the largest ports of entry at the U.S.-Mexico border, are on hold. The IG also reports that at two border crossings – Douglas and San Luis in Arizona – a portion of the dedicated out-of-service space was not being used because the General Services Administration had not completed improvements. In addition, at five border crossings – Columbus, New Mexico and Eagle Pass, El Paso Bridge of Americas, Laredo World Trade Bridge, and Roma in Texas – the Bureau of Customs and Border Protection moved or planned to move FMCSA’s dedicated inspection and out-of-service spaces. For example, at the El Paso Bridge of Americas, without coordinating with FMCSA, the Bureau of Customs and Border Protection inspectors notified the local supervisory inspector that within 4 days the dedicated inspection and out-of-service spaces would be moved to a less desirable location on the compound. Clearly, this is unacceptable. In addition, the IG reports that inspectors at 22 crossings could electronically access Mexican and U.S. databases to verify CDLs, license plates, authority to operate in the United States, and U.S. insurance coverage. There were problems at the other crossings, which I don’t need to detail at this time. What’s important to note here is that the IG states that it did not re-verify the accuracy of the Mexican commercial driver’s license and vehicle registration databases. The Teamsters pose a question to the Committee: Who cares about being able to access a database if the information in it may not be accurate? We would urge the Committee to investigate this further. We would also urge the Committee to look into how state and local law enforcement personnel will be able to access Mexico’s databases. From what we can tell, he/she is expected to call an 800 number to access this information and to check if a Mexican driver has insurance or proper operating authority. We would suggest that such a system may prove to be a disincentive for state law enforcement officials to vigorously pursue violations by Mexican carriers and drivers. Along these same lines, we question how the state and local law enforcement personnel will determine whether a Mexican driver/carrier is in violation of U.S. cabotage laws. If, for example, a driver was pulled over for running a red light in Florida and he was supposed to be taking a load to Idaho from Mexico, would the state and local law enforcement personnel recognize the cabotage violation and know how to enforce it? Finally, the IG audit reports that 18 states, including the border State of New Mexico and the States of Nevada and New York, have not yet adopted FMCSA’s rule authorizing their State inspectors to take action when they encounter a vehicle operating without authority. This finding leads us to question Secretary Mineta’s November 20, 2002, certification that authorizing Mexican carrier operations throughout the U.S. does not pose an unacceptable safety risk. The fact is that State inspectors need to be able to place Mexican carriers operating without authority out of service. The IG states that the primary concern here is not necessarily the long-haul carriers whose authority will be checked every 90 days, but rather carriers authorized to operate only in the commercial zones that continue beyond the zones and do so illegally. As reported by the IG in 1999, at least 52 Mexican-domiciled motor carriers operated improperly in 20 states beyond the four border state’s commercial zones, and roadside inspection data throughout the U.S. has shown that this practice has continued. Two of the 20 states were Nevada and New York, both of which have not authorized their State inspectors to place Mexican carriers out of service. Diabetes The Teamsters Union believes that some diabetics should be allowed to operate in interstate commerce but current law prohibits them from doing so. In fact, current law only allows people who use insulin to operate a Commercial Motor Vehicle (CMV) in intrastate commerce on a waiver for a period not to exceed 3 years. Most Teamster members don’t operate in intrastate commerce. They operate in interstate commerce, and unfortunately many of them have lost their jobs as a result of diabetes, irrespective of the fact that they have a proven driving record and their medical condition under control. The FMCSA has proposed an exemption program, but it does little to correct the current problem. It would only permit people to participate in it if they have participated in an intrastate waiver program for the three years immediately preceding their application for an exemption. But according to the FMCSA, there are as many as 20 states that do not have an intrastate waiver program or severely restrict participation through grandfather provisions. Thus, to participate in the program, you have to live in a state that has an intrastate waiver program, meet the state’s criteria for participation in the waiver program, work for an employer that has intrastate driving opportunities, and work for an employer who is willing to let you drive intrastate for three years. Obviously, the end result is that no one will actually be able to participate in this program. The Teamters Union and the American Diabetes Association believe that the three-year rule is unnecessary based on the current practice of diabetes, a position that FMCSA’s own Expert Medical Panel pushed in both the FMCSA’s July 2000 report as well as in the Expert Medical Panel’s own additional comments which were inserted into the public docket. The Expert Medical Panel recommended a one or two month adjustment period, which the Teamsters would support following the doctor’s advice and replacing the three-year rule with a one or two month adjustment period. We therefore urge this Committee to express their concern with the three-year rule and address this issue in the upcoming TEA-21 reauthorization bill. Lack of Roadworthy Chassis The Teamsters Union currently represents several hundred port truck drivers and has been working to organize all of the approximately 50,000 truck drivers who haul intermodal containers in ports located throughout the United States. These truck drivers suffer from deplorable wage and working conditions, and while I will not get into specifics about the cause of their plight, I do want to focus on the fact that they are forced every day to haul containers on unsafe, un-roadworthy chassis, perpetuating a motor carrier safety problem that has existed for decades and has been largely ignored by the FMCSA. Although widely disregarded, these workers play an integral role in United States trade. United States’ ports and the shipping industry form the foundation for international trade upon which the vitality of the free market economy depends. International trade experts reported that the global container trade rose from an estimated 83 million containers in 1990 to 198 million in 2000. And despite the economic downturn in 2001, the top 20 U.S. ports still experienced increases in container volume from the previous year. Experts predict that by 2010 at least 90% of all freight carried by ocean carriers will be transported by intermodal containers. Consequently, profits for ocean carriers have increased steadily for the past three years. Unfortunately, the same cannot be said for port truck drivers. Port drivers are forced to spend an average of 3 hours per day, or 15 hours per week, in ports, all unpaid, waiting in various lines to pick up chassis and containers. Because of their economic plight and the fear of retaliation and blacklisting, they are forced to choose between hauling unsafe chassis or taking their place at the end of a new line, while the maintenance and repair shop makes the chassis barely roadworthy. Port drivers are forced to choose between hauling overweight containers or receiving no work as a result of their refusal. They are also forced to haul improperly labeled containers that often contain hazardous materials. Again, if the port driver complains, he or she is likely to suffer some form of retaliation. To correct this situation and assure that port drivers are given roadworthy chassis from the start, the Teamsters Union has joined with its union brothers on the docks, the ILA and ILWU, and the American Trucking Association, whose own member trucking companies have seen their safety ratings maligned, through no fault of their own, to support legislation that spells out who is responsible for inspection and repair of intermodal chassis and would require that equipment to comply with all commercial motor vehicle safety requirements before it is handed off to a port driver or trucking company. Mr. Chairman, motor carriers and drivers have been routinely cited and fined for violations of motor carrier safety regulations of chassis that they do not have an opportunity to systematically maintain. For the most part, rail carriers and foreign-owned steamship lines control the entire maintenance program for all 750,000 chassis under their management. Only those parties who control the equipment and have the opportunity and authority to maintain, repair and inspect that intermodal equipment should assume responsibility for the safety of that equipment. That is what we would propose in new legislation, and we are hopeful that you, Mr. Chairman, and members of the Committee will work with us to assure that the thousands of chassis with containers that leave the ports every day have been maintained properly, inspected, and repaired if necessary, so that highway safety is not compromised by this segment of the trucking industry. Toll Collector Safety The Teamsters Union also represents hundreds of toll collectors and road crews across the United States who clearly work in hazardous conditions. These workers are exposed to fast-moving traffic with little or no protection. The DOT has addressed some of the safety issues involving road crews through its existing work zone safety program, although it is important to note that the DOT’s SAFETEA bill doesn’t seem to reauthorize it. We’re hopeful that was an oversight and that this Committee will address it in its TEA-21 reauthorization bill. However, nothing has been done to deal with the safety issues that toll collectors must face at toll plazas, especially with regard to EZ Pass or Smart Tag programs that have gone into effect. While the Teamsters Union is in no way advocating elimination of these programs, we are requesting that the Committee include in its TEA-21 reauthorization bill a study that examines the inherent dangers of toll and express toll programs to workers and others. 15 Passenger Vans Despite mounting evidence that 15-passenger vans are inherently dangerous when driven by an untrained driver, and despite repeated Congressional mandates that the DOT take action to ensure that vehicles and their drivers meet federal safety standards, the DOT has yet to issue a final rule requiring the application of all Federal Motor Carrier Safety Regulations (FMCSRs), including commercial drivers license CDL and drug and alcohol testing regulations, to these unsafe vans. Further, in proposed rules, the DOT has refused to require States to apply similar regulations to vans operating intrastate. Compounding this problem is the fact that many school districts across the country are transporting students in these dangerous vehicles, typically driven by an untrained teacher, coach or parent, to school and school-related activities. While federal law prohibits the sale of these and other vehicles that do not conform to federal school bus standards, for the purpose of transporting school children, the law does not prohibit schools from using the vehicles when they are able to obtain them through other means. Schools are taking advantage of this loophole and, in an effort to save money, are using 15-passenger vans in lieu of school buses - often with fatal results. To explain, Section 4008(a) of TEA-21 changed the definition of commercial motor vehicle to cover all passenger vehicles that are designed or used to transport more than 8 passengers (including the driver) for compensation. In addition, TEA-21 required that all FMCSRs apply to those commercial motor vehicles, except to the extent that the Secretary of Transportation determines through a rulemaking proceeding, that it is appropriate to exempt such operators of CMVs designed or used to transport between 9 and 15 passengers (including the driver) from the application of those regulations. In response to the changes made in TEA-21, the Federal Highway Administration (FHWA) instituted a rulemaking which would have required all CMVs designed or used to transport between 9 and 15 passengers (including the driver) to file a motor carrier identification report, mark their CMVs with a U.S. DOT identification number, and maintain an accident register. Under the proposed rule, these commercial passenger vans would be exempt from all other FMCSRs. This rulemaking was never finalized. Congress, in response to DOT’s failure to implement the changes required by TEA-21, enacted the Motor Carrier Safety Improvement Act of 1999 (MCSIA), which, among other things, ordered the DOT to finalize the rulemaking initiated by FHWA. In addition, MCSIA stated that “[i]n no case should the rulemaking exempt from such regulations all motor carriers operating commercial vehicles designed or used to transport between 9 and 15 passengers (including the driver) for compensation.” Although TEA 21 required the rulemaking to be finalized by December 9, 2000, the DOT has yet to finalize the proposed rule in accordance with the requirements of TEA-21 and MCSIA. The newly-created FMCSA did initiate a new rulemaking on January 11, 2001, which proposes requiring certain CMVs designed to transport between 9 and 15 passengers (including the driver) that transport those passengers for direct compensation, interstate and to destinations beyond a radius of 75 miles to comply with the FMCSRs, except for the CDL and drug and alcohol testing regulations. FMCSA has not taken any further action on this proposed rule. At present, the FMCSRs apply to commercial motor vehicles designed or used to transport 16 or more passengers (including the driver). Congress should require FMCSA to finalize its rulemaking expeditiously, and should require the application of all FMCSRs, including CDL and drug and alcohol testing regulations, to commercial passenger vehicles designed or used to transport between 9 and 15 passengers (including the driver), regardless of the distance traveled. FMCSA should also be required to make the States adopt comparable intrastate standards as a condition of MCSAP participation. Hazardous Materials Reauthorization Finally, the International Brotherhood of Teamsters is committed to supporting legislation that will provide a safe work environment for its members who are involved in the handling and transportation of hazardous materials. As Congress prepares for reauthorization of TEA-21, we anticipate that the Committee may also consider reauthorization of the Hazardous Materials Transportation Program, which in our view is long overdue. Given the limited amount of time at this hearing, we won’t go into detail on our priorities for hazmat reauthorization. Rather, we encourage the Committee to hold a separate hearing on this important issue. In the interim, we leave you with the following: · The Teamsters support the existing shared jurisdiction of the Department of Transportation and the Occupational Safety and Health Administration to ensure safety of all hazmat workers. · We urge all employees involved in, or around, the transportation of hazardous materials be included within the scope of DOT training requirements to assure their familiarization with the safety aspects of the HMR rules. · We urge the Committee to maintain and increase funding to non-profit employee organizations to train hazmat employee instructors, and to expand that program to allow those instructors to train rank-and-file hazmat employees. We also urge the Committee to increase funding for training firefighters and other emergency responders. · We urge the Committee to reject any proposals to remove placards from hazmat shipments. · We urge the Committee to retain existing language that requires the Secretary of Transportation to coordinate with the Director of the National Institute for Environmental Health Sciences (NIEHS) and others to monitor public sector emergency response planning and training for accidents/incidents involving hazardous materials. · We oppose any special interest exemptions from hazardous materials transportation safety regulations, including any efforts to increase the special permitting period above two years. With that, I thank you again for the opportunity to testify today. I’d be happy to answer any questions you may have.
Mr. Joseph M. Harrison
My name is Joseph M. Harrison. I am the President of the American Moving and Storage Association (AMSA) with offices at 1611 Duke Street, Alexandria, VA 22314. AMSA is the national trade association of the regulated moving and storage industry with 3,500 members worldwide representing the entire spectrum of the industry, including approximately 25 national van lines, 1,100 independent regulated carriers, 1,600 agents of van lines, 1,000 of whom are also regulated carriers in their own right, and over 500 international movers. These entities contract with 30,000 independent owner-operators who own equipment and perform much of the physical transportation of household goods. The industry employs roughly 450,000 workers, operates 66,000 trailers, 32,000 tractors and 18,000 straight trucks and generates revenues of $7 billion annually. We operate in every city, town, borough and hamlet in the United States. In addition to our interstate transportation service, we perform the intrastate and local moving and storage services that are required by consumers and industry. AMSA’s functions include representation and promotion of the interests of the moving and storage industry before Federal and State legislative and regulatory bodies. This statement is submitted in response to the Committee’s invitation to participate in its hearing on reauthorization of the Federal Motor Carrier Safety Administration (FMCSA) programs and responsibilities and the issue of fraud in the transportation of household goods. REAUTHORIZATION The moving industry supports FMCSA efforts to improve highway safety. We commend the Administration for the sensible approach it developed in the formulation of its recently announced hours of service regulations. We will continue to provide input to the Administration on all important truck safety issues it must address. We also support the Administration’s request for an additional $1 million dollars in funding to bolster its moving industry enforcement capabilities. We are, however, disappointed that more money is not available for this important effort since we are convinced, as was the General Accounting Office in its 2001 Report to Congress, that effective regulation of the interstate moving industry requires strong Federal oversight and, in fact, is not conducive to regulation by the 50 States. It has become an accepted fact that rogue movers are the root cause of the current effort to involve the States in regulation of the interstate moving industry. Just recently a major blow was dealt to many unscrupulous operators by the criminal investigation and prosecution by the DOT Inspector General and the F.B.I. of 42 Florida based rogue movers and 74 individuals that were involved in their operations. This is a prime example of the aggressive action that should be taken by the FMCSA to rid the industry of unlawful operators. Clearly, the solution to the problems created by rogue movers is more aggressive Federal enforcement of the existing Consumer Protection regulations and incarceration of the operators of these enterprises. This should be the main focus of FMCSA oversight of the moving industry. However limited their resources may be, the most effective use of those resources lies in action that is most beneficial to consumer shippers. This means vigorous prosecution of illegal operators. We also believe FMCSA must demonstrate a more concerted interest in and focus on regulatory issues and proceedings that are intended to assist consumer shippers of household goods. For example, an FMCSA proceeding that would completely revamp the existing household goods Consumer Protection regulations has been pending an inordinately long 5 years. In addition, on more than one occasion, AMSA has petitioned FMCSA requesting formal proceedings to address issues that directly impact the rights of consumers. Each request was rejected for reasons we would submit simply evidenced an unwillingness to regulate. Just recently (3 months ago) AMSA filed another petition with FMCSA requesting the adoption of regulations governing the relationship between brokers of household goods transportation services and consumers. A major regulatory void exists in this area and action is necessary to warn consumers of the unscrupulous practices of, most particularly, Internet brokers. AMSA drafted proposed regulations and, because of the urgency of this issue, recommended immediate FMCSA action. To date, no response has been received from FMCSA. STATE REGULATION OF THE INTERSTATE MOVING INDUSTRY AMSA has advised your staff and their House counterparts that the moving industry is not opposed to conferring authority on the States to prosecute movers that violate important Federal licensing, pricing or arbitration requirements, or engage in hostage freight practices. We believe such a measure would seriously impact the rogue movers’ ability to defraud consumers. The Administration’s proposed solution (proposed Section 14710 of title 49), on the other hand, goes much further. If enacted, this provision would vest in the States authority to conduct investigations and institute civil actions related to all statutes, regulations, and orders administered by DOT and the Surface Transportation Board which now govern the entire licensed motor carrier and freight forwarder industries. (The language of proposed subsection (a)(1) is not limited to motor carriers and freight forwarders that are engaged solely in the transportation of household goods. Only subsection (a)(2), which is limited to foreign motor carriers, encompasses those that are engaged in the transportation of household goods). Approaching this issue from a broader perspective, to the extent Congressional precedent exists for the shifting of Federal enforcement authority to the States to prosecute entities that are engaged in interstate enterprises, we do not believe the circumstances underlying enactment of those statutes are analogous to the circumstances presented by regulation of the interstate moving industry. Presently, Federal statutes and regulations preempt the entire field of regulation of the interstate moving industry. In addition to consumer protection regulations, interstate movers must comply with regulations governing registration, insurance and process service; binding estimates and guaranteed pickup and delivery service; extension of credit; van line/agent pooling and agent responsibility; owner-operator equipment leasing; loss and damage claim and dispute settlement, to name a few. This regulatory regime requires a uniform Federal approach to oversight and enforcement and is not suited to enforcement by the various authorities contained in 50 States. In its March 2001 Report to Congress, the General Accounting Office essentially adopted this position noting that whatever benefits may result from enforcement by the States cannot be measured until it has been preceded by vigorous DOT enforcement. The Administration’s proposed statutory language is nearly identical to Section 6103 of the Telemarketing Fraud Act (15 U.S.C. § 6103). In our view, enforcement of that Act by the FTC and the States is not an appropriate model of Federal/State cooperation when considering expanded regulation of the interstate moving industry. The legislative history of the Telemarketing Act is quite clear in its description of the magnitude of the fraudulent schemes Congress addressed with its 1994 legislation. Congress found that consumers and others were estimated to be losing $40 billion annually to fraudulent telemarketers. Notwithstanding vigorous FTC efforts to curb those practices (90 cases in Federal courts halting fraud that was estimated to produce sales of over $1 billion), it was acknowledged that the FTC enforcement resources simply were not sufficient to adequately protect consumers. This was the case because, in part, telemarketers are not dependent upon fixed locations as points of sale, are very mobile, and move from State to State. Although the operations of telemarketers are easily distinguished from those of moving and storage operations, there has been a mistaken tendency to compare the two simply because rogue movers may also cross State lines. Thus, while on the one hand Congress was prompted to act because of the highly mobile nature of the fraudulent telemarketers, on the other hand, it understood the importance of not interfering with or in any way hampering the operations of legitimate telemarketers as evidenced by the following expression of congressional intent: The Committee is not interested in further regulating the legitimate telemarketing industry through this legislation. Rather, the goal is to curtail any deceptive (including fraudulent) and abusive practices by specific telemarketers. In a similar vein, AMSA is anxious to curb the practices of unscrupulous movers thus accounting for its support of limited State enforcement authority. However, routine operational problems that arise in the course of moving often become the basis for consumer complaints even though the problems are unavoidable – loss or damage, delayed pickups or deliveries, etc. – situations that impact the operations of the most efficient and reputable movers. Nonetheless, unavoidable problems can become the catalyst for persistent consumer complaints. Legitimate, regulated movers should not be subjected to an additional layer of 50 State regulators and their city, town and village subordinates that may or may not understand the boundaries of appropriate Federal regulation. Unfortunately, there has been an unwarranted tendency on the part of certain State attorneys general to assume that persistent consumer complaints, whether justified or not, require action on their part. We must not loose sight of the fact that unscrupulous movers are nothing more than crooked operators. They only exist to defraud the public. In its effort to deal with this problem, Congress must also not loose sight of the fact that only legitimate movers – those that are not at the heart of the problem – will comply with any new legislative measures that are enacted. The rogue movers will not. They will continue to ignore the law. Certainly that was the case with the illegal operators that are the subjects of the previously referred to criminal indictments (42 rogue movers and 74 individuals). They ignored the law, and if they were allowed to continue to operate, they would ignore the existing law as well as any new enactments. Our experience indicates that many States are ill suited to regulation of the interstate moving industry because they have elected to completely deregulate the transportation of household goods in their own intrastate commerce. While rogue movers engage in interstate commerce, the majority of their efforts are devoted to local and intrastate moves. Before undertaking Federal regulation, the States should forcefully deal with unscrupulous movers that operate within their jurisdictions. AMSA welcomes the opportunity to work with this Committee and your staff to fashion a legislative proposal that will address expanded enforcement without impeding the operations of legitimate movers. UNLIMITED CARRIER LIABILITY WOULD BE DISASTEROUS The members of AMSA remain unalterably opposed to any legislation that would authorize State officials or consumers to invoke or enforce State laws as an additional remedy to that provided by the Carmack Amendment. Any tinkering with Carmack to expose interstate movers to such expanded liability would likely have a severe disruptive economic effect on interstate commerce. The availability of State law claims to shippers and the States would obviously embrace both common law causes of action and those authorized by statute such as the various Deceptive Trade Practices Acts maintained by most States. The remedies available under such common law and statutory claims include injunctive relief, civil penalties, consequential economic damages, punitive damages, mental anguish and emotional distress damages, treble damages, and attorney's fees. The moving industry's concerns with the application of State laws is two-fold. First, carriers will be exposed to substantially increased liability. Unlike freight carriers, movers deal with the personal effects of individual consumers. As a result, virtually any claim for loss or damage to a shipment of household goods involves an emotional element, some more so than others. Allowing State laws to be invoked to permit recovery for mental anguish or emotional distress will undoubtedly convert every broken chair to a family heirloom having irreplaceable sentimental value. The potential increase in liability to carriers could well be devastating to the interstate moving industry. The second and more far reaching problem is the diverse nature of the various State laws. There is no uniformity among them. This, coupled with the potential for greater recovery under State law, would gut Carmack and effectively repeal it. The Carmack Amendment not only provides a uniform regime of carrier liability, it allows for complete compensation to shippers for their damages resulting directly from the loss, injury, or delay to their shipments. Carriers know and understand their liability exposure under this Nationwide system. Expanding liability to include State laws will subject interstate movers to 50 different standards. To illustrate the point, consider the various Deceptive Trade Practices statutes maintained by most States. Although several States have adopted the Uniform Deceptive Trade Practices Act, or a variation thereof, the implementation or enforcement of the remedies under such statutes is anything but uniform. This is so because these statute require a subjective determination of what is deceptive or unfair. For example, Illinois has adopted the Uniform Deceptive Trade Practices Act. It defines a deceptive trade practice by listing 12 different categories of conduct, the last of which is a catchall for "any other conduct which similarly creates a likelihood of confusion or misunderstanding." 815 ILCS, 510, Section 2 (a)(12). California's Consumers' Legal Remedies Act lists 23 different types of conduct deemed to be deceptive which differ from those in Illinois. Civil Code Section 1770 (a). In Texas, the Deceptive Trade Practices - Consumer Protection Act categorizes 27 types of conduct which, not surprisingly differ from Illinois and California. Massachusetts' counterpart simply declares unlawful "unfair or deceptive acts or practices in the conduct of any trade or commerce." And New York has a similar definition. The uncertainty in these definitions is compounded by the enforcement authority granted to State officials and the basis for civil actions created for private litigants. In New York, the Attorney General may bring an action for injunctive relief, restitution, or civil penalty whenever he/she believes that a person, firm, corporation, association, or agent or employee thereof has engaged in or is about to engage in a deceptive practice. NYS, General Business Law, Art. 22-A, Section 349 (b). The same broad authorization is granted to the Massachusetts Attorney General. See General Laws of Mass., Part I, Art. XV, Chapt. 93A, Section 4. The same unbounded discretion is granted to the Texas Consumer Protection Division. See Chapt. 17, Texas Business and Commerce Code, Section 17.47. While it might be argued that a State official is duty-bound to act with restraint in enforcing these laws, the same cannot be said of private plaintiffs who have a significant self-interest in pursuing a deceptive practice remedy. Yet these statutes afford the same unbridled basis for instituting a civil action. Massachusetts authorizes a civil action, including a class action, for any person injured by another person’s deceptive act or practice. Chapt. 93A, Section 9. In New York, any person who has been injured by a deceptive act or practice may institute a civil action for an injunction and money damages, which may be trebled, as well as attorney's fees. N.Y.S. General Bus. Laws, Art. 22-A, Section 349. The remedies authorized by the Statutes also vary from State to State. Illinois authorizes a civil action for injunctive relief and attorney's fees . However, proof of monetary damage is not required. A person need only show that he is "likely to be damaged." 815 ILCS 510, Section 3. The Texas statute specifically authorizes recovery of economic damages and damages for mental anguish, as well as treble damages, and attorney's fees. Texas Business and Commerce Code, Section 17.50. And California authorizes consumers to bring an action, including a class action, for injunctive relief, restitution, actual and punitive damages, as well as attorney's fees. Civil Code Section 1780, 1781. The application of these State laws also presents significant procedural problems. Under the Carmack Amendment, a 2 year statute of limitation to bring a lawsuit for cargo loss or damage is imposed. This period commences from the time the shipper's claim is denied. 49 U.S.C. 14706 (e). However, State laws often provide a different period. California has a 3 year limitation period and it starts to run from the date of commission of the deceptive practice. Civil Code Section 1783. In Texas, the period of limitation is 2 years, and it begins on the date the deceptive act or practice occurred or within 2 years after the consumer discovered it. Texas Business and Commerce Code Section 17.565. Legislation that would permit States and individuals to resort to State laws would turn the standard for measuring carrier liability for loss or damage back 100 years. The same problems that existed prior to enactment of Carmack would be revisited on the moving industry. Those difficulties were clearly summarized in Schultz v. Auld , 848 F.Supp. 1497 (D. Idaho, 1993): [I]f this Court were to adopt Plaintiff's position, the uniformity and certainty of the national scheme would be compromised. The position asserted by Plaintiff would enable one moving from any state to the State of Idaho to proceed under the Idaho Consumer Protection Act. Such a rule would create an entirely new scheme of potential liability for a carrier, as the right to assert additional causes of action would fortuitously depend from where or to where the shipper moved. It is not difficult to imagine that every suit brought against a carrier of household goods would include allegations of intentional conduct or fraud in an effort to avoid the preemptive effect of the Carmack Amendment. Moreover, to account for increased liabilities occasioned by the exception, carriers would necessarily be required to increase their rates, thus further defeating congressional policy to encourage reasonable rates for transportation. Congress must not lose sight of the detrimental consequences of the current explosion of tort litigation throughout the Nation. When doctors are walking away in some States because of the cost of litigation, Congress should think twice before creating avenues for additional litigation. This is particularly so where, as here, there is in place a uniform Federal process that mandates full protection for aggrieved shippers. PRO-CONSUMER INITATIVES SHOULD BE ENACTED AMSA officials have discussed with your staff a number of possible legislative proposals that would assist consumers in their dealings with reputable movers and would also help them avoid the schemes employed by rogue movers. It is appropriate to review some of those measures. Expanded Arbitration The Administration has also proposed that Section 14708 (a) of title 49 be amended by requiring that movers arbitrate with shippers all disputes involving claims of $5,000 or less and not, as now required, claims involving loss or damage to goods. AMSA is opposed to this proposal because its broad scope makes it difficult to reasonably predict its potential impact. It is clear, however, that, if enacted, this requirement will generate arbitration cases that arise from myriad complaints such as mere shipper dissatisfaction with a move apart from the fact that loss or damage to goods may not have occurred. Such an open-ended dispute settlement process is an invitation to shippers to pursue purely subjective disputes as trivial as the mover's personnel lacked "professionalism" or their appearance, language or demeanor was unacceptable. In addition, consumers will be encouraged to pursue damages they believe result from alleged inaccurate representations concerning a carrier's performance, emotional distress and physical inconvenience, all of which they would insist warrant some measure of damages, compounded possibly by requests for punitive damages. An obvious problem brought on by this scenario is the difficulty in determining how independent arbitrators will resolve disputes of this nature and what standards the moving industry must follow when addressing such claims. It is AMSA's position that consumers would be better served if the existing mandatory binding arbitration threshold for loss or damage claims was increased from $5,000 to $10,000. This will provide greater consumer access to inexpensive neutral binding arbitration, thus avoiding the expense of costly litigation. It is also appropriate that the subject matter of claims that are eligible for arbitration be expanded beyond loss or damage to goods to include disputes involving the payment of carrier charges, a legitimate point of controversy between consumers and carriers. Hostage Freight The unlawful holding of consumers goods is a frequently employed tactic used by rogue movers to inflate charges and demand their payment in exchange for the consumer's goods. The rogues obviously ignore the existing Consumer Protection regulation. It requires that movers relinquish possession of shipments moving on non-binding estimates when the shipper requests delivery upon payment of 110 percent of the estimated charges and defer demand for payment of the balance for 30 days from delivery. Civil or criminal penalties should be imposed for blatant violations of the existing regulation. Operating Authority Registration Requirements Under the current FMCSA registration requirements, essentially anyone that is willing to pay a $300 filing fee and provide evidence of certain insurance can obtain authority to operate as a motor carrier of household goods throughout the entire United States. Many rogue movers have been granted multiple operating authorities under this most liberal system. They use their multiple authorities to play “bait and switch” games with consumers and to disavow knowledge of conduct they want to disclaim. In the case of applicants for household goods authority, it is AMSA's position that all such applicants should, at the time of their application, be required to (1) specifically identify their loss and damage arbitration program, (2) identify their tariff and provide a sample of its notice of availability for inspection, (3) make certain disclosures related to the service they will perform on behalf of consumers, and (4) disclose all its affiliations and ownership ties with other movers. These are elementary requirements that can and should be met by all legitimate applicants for operating authority. Written Estimates and Inventories Consumer shippers of household goods deserve the benefit of written estimates of carrier charges for transportation and all related services. Reputable movers routinely provide this information to consumers. Rogue movers try to avoid putting anything in writing before they take possession of goods or their shipping documents are deliberately vague on the important points. Likewise, consumers should also receive written inventories of the goods they tender in sufficient detail to assist them in resolving any disputes they may have with their movers. Regulation of Brokers FMCSA should be required to establish regulations governing the relationship between consumers and brokers of household goods transportation services, but most particularly brokers that operate exclusively on the Internet. A regulatory void exists in this area and the phenomenal growth of consumer reliance on the Internet as a means of locating service providers has resulted in countless numbers of moving arrangements that have no basis in the existing Consumer Protection regulations. AMSA, as noted, submitted a proposal to FMCSA that would address this situation. Expanded Advice To Consumers FMCSA should be directed to employ all available means to disseminate information to consumers concerning the moving process and their rights when dealing with movers. This would include the promulgation and dissemination of regulations through the FMCSA website and other means of communication customarily followed by Federal agencies. In this same connection, a consumer complaint data gathering system should be established by FMCSA. CONCLUSION The regulated interstate moving industry as represented by AMSA transports roughly 1.3 million interstate shipments each year with a high degree of consumer satisfaction. While the rogue mover problem is the predicate for possible Congressional action, the search for solutions must not result in statutory requirements that overburden and impair the legitimate mover’s ability to provide its essential service to the public. Since abolishment of the Interstate Commerce Commission in 1996, AMSA has been telling Congress, at every opportunity, that the solution to the problems created by unlawful and rogue movers is more effective enforcement by the Federal Government of the existing statutes and regulations governing the moving industry. This position has not waivered. AMSA is not, however, opposed to strengthening the existing Federal statutory enforcement scheme. We believe our recommendations to this Committee will effectively deal with rogue movers, bearing in mind that no body of law can completely deter a criminal element. We also firmly believe that conferring enforcement authority on the States, or exposing the moving industry to potentially unlimited liability for its interstate service, would cause many moving and storage operators to question the wisdom of their continued involvement in interstate transportation. The network of small businesses that make-up the moving and storage industry should not be overburdened with State efforts to uniformly interpret and enforce Federal regulations, a proposition that will be virtually impossible to achieve. The interstate transportation of household goods is a Federal endeavor which should be regulated by the Federal Government.
Mr. Peter Hurst
I am Peter Hurst, President of the Commercial Vehicle Safety Alliance and Director of Carrier Safety and Enforcement Branch for the Ontario Ministry of Transportation. CVSA is an international association of state, provincial, and federal truck and bus law enforcement agencies along with representatives from industry in the United States, Canada, and Mexico. As CVSA President, and a motor carrier enforcement official from Canada, I just want to tell the Committee how important this reauthorization legislation is to CVSA. At the same time, it will be of great interest to the Provinces and Territories of Canada especially with respect to border and new entrant issues. At this time, I would like to introduce our primary witness for today, Lieutenant Paul Sullivan of the Massachusetts State Police and immediate past President of CVSA who will present the details of CVSA’s reauthorization proposals. Good morning, Mr. Chairman, and members of the Commerce Committee, I am Paul Sullivan, a Lieutenant with the Massachusetts State Police, and am here today to present CVSA’s reauthorization policy on behalf of all of our members. II. Challenges for the upcoming Reauthorization Our recommendations have been carefully considered to meet the following challenges ahead of us: § Help achieve the goal we share with the Federal Motor Carrier Safety Administration to reduce the truck fatality rate by 41% (from 1996 to 2008) or 1.65 fatalities per 100 million vehicle miles traveled. We appreciate the comments made by FMCSA Administrator-Designate Annette Sandberg before this Committee on May 21 in which she credited the states with playing a significant role in the preliminary estimated 3.5% reduction in fatalities resulting from commercial vehicle crashes for 2002. § Strengthen safety enforcement programs that have worked and take on new programs which the performance-based approach has identified as having significant potential to achieve safety goals. § The need for a greater focus on commercial vehicle transportation security and the implication for front-line police charged with motor carrier safety enforcement. § Recognize that states are now facing their most severe budget crisis in many years as we determine a reasonable and appropriate balance between the funding of federal and state operations. III. CVSA Reauthorization Recommendations Increase MCSAP by 5% annually over the life of the bill. A CVSA member survey indicates that states need an increase of 5% annually, or 30% over the life of the bill, to keep the roadside inspection and other enforcement programs such as motor carrier Compliance Reviews at their present strength. It is important to note that in most states, the MCSAP grant is used almost exclusively for inspector salaries. States have the greatest ability to impact safety’s bottom line of reducing crashes and injuries, and most importantly, saving lives. One of the primary reasons for this is the state roadside inspection program. This is the conclusion of two recent studies commissioned by the Federal Motor Carrier Safety Administration and undertaken by the Volpe National Transportation Systems: FMCSA Compliance Review Impact Assessment Model (February 2002) and FMCSA Roadside Inspection and Traffic Enforcement Effectiveness Assessment (December 2001). Data was reviewed on compliance reviews, roadside inspections, and traffic enforcement for the year 1998. These are the primary enforcement programs constituting the “core” MCSAP programs. They created an analytical model to calculate the number of crashes avoided and injuries and lives saved. We, at CVSA, using dollar values taken from FMCSA’s cost-benefit analysis for the latest CDL Final Rule on July 31, 2002, assigned total dollar values to each of the these three categories. Roadside inspections resulted in the greatest number of crashes avoided, lives saved and injuries avoided. When attaching dollars to these numbers, roadside inspections provided the greatest return on investment. (See Attachment A for a more detailed summary). We are concerned that FMCSA’s proposal does not increase the MCSAP program at all in the first year of reauthorization, keeping it at $164,500,000, while the FMCSA’s administrative budget is increased by 59% in the first year of reauthorization. Looking at FMCSA’s projected increases in their Administrative budget for the life of the bill, their administrative budget goes up by another 11% and the MCSAP program goes up by 10%. FMCSA’s operations end up with a 70% increase over the life of the bill and MCSAP with only 10% over the life of the bill. We suggest that this is out of balance and that a 38% increase over the life of the bill for the MCSAP program is justified and reasonable. In discussing the funding levels for the MCSAP program, we feel we are obligated to tell you that many states are having great difficulty in coming up with the full 20% match (MCSAP is an 80/20 program) to draw the maximum amount of their grant. Over the past two years, some 38 states were forced to roll over at least part of their full allocation to the following year. We realize that in these difficult economic times, this is an unfortunate reality in other federal grant programs. But we do suggest that FMCSA work more closely with the states to try and resolve this problem. And we recommend that, as in the case of the ITS-CVO Commercial Vehicle Information Systems Network program administered by the Federal Highway Administration, consideration be given to allowing the states to use other federal dollars for the match not to exceed 90% reducing the state share to 10%. Another funding source available to help resolve this problem is the High Priority Program. High Priority Program and Safety Performance Incentive Programs We support the purposes of both of these programs. Our members fully embrace the incentive, performance-based approach. We also support FMCSA’s proposed increase in the takedown for both programs from 5% to 10% of the overall MCSAP funding level. We are pleased that neither of these programs will require a matching contribution from the state. CVSA has been a strong advocate of 100% funding for these programs because, unlike the basic inspection program grant, projects under either of these programs cannot necessarily be planned to coincide with the state legislative budget cycles. We appreciate FMCSA’s recognition of this problem. Traffic Enforcement Flexibility for the states to use MCSAP officers for traffic enforcement that is not tied to an inspection (current policy), should only be allowed when funds are provided over and above the basic MCSAP core inspection grant. CVSA suggests use of High Priority Program funds for this purpose. Traffic enforcement efforts should not take resources away from the core program. Traffic enforcement against the passenger car around trucks is something that should be tested in a pilot program to ensure uniform collection of violation data and provide a way to measure its effectiveness. We suggest that this pilot program be undertaken in conjunction with the National Highway Traffic Safety Administration. This pilot should include the involvement of local law enforcement officers who already do traffic enforcement against the passenger car. There are close to 800,000 such officials throughout the country. These officers would be trained in basic “rules of the road” for trucks and security awareness as well. The training would help make them more comfortable in doing traffic enforcement around trucks multiplying the impact on safety. Finally, the pilot program would be a way to test education/outreach strategies especially on the car/truck interaction issue. New Entrants We support this program which was a provision of the Motor Carrier Safety Improvement Act of 1999. It is important to do safety audits on the approximately 50,000 new carriers entering the trucking business each year. Studies show that new entrants are more crash prone in their early stages of operation. This is a resource intensive program since in most cases, it requires a face to face meeting with the new entrant on site at the place of business. A survey of CVSA member jurisdictions indicates that the cost to fully implement a new entrant program would be $30,000,000 a year. The good news is that FMCSA’s overall cost estimate agrees with our survey. But a problem arises when it comes to finding the dollars to fund this program. FMCSA directed the implementation of this rule to begin in January 2003. Yet there is no line item in FMCSA’s 2003 budget that would fund the program with the result that states are “scrambling” to try and comply and in most cases are having to pull their enforcement personnel away from targeting known bad carriers to do the new entrant safety audits. We do not believe that Congress intended this to happen. In this past week, we have been hearing from members who are now working on their MCSAP commercial vehicle safety plan for Fiscal Year 2004 that starts in October and are uncertain about what to expect in 2004. They are asking whether there will be enough money in FMCSA’s 2004 budget to help them with this program? Will the reauthorization bill pass providing enough funding? When looking at FMCSA’s reauthorization proposal we find that the $17,000,000 allocated for the states for this program is not enough. But we have learned that in public testimony before the Congress, FMCSA indicates that it is reserving another $16,000,000 within its Administrative budget to monitor and administer the program. This expenditure is to cover the cost of their hiring 32 new staff members and recruiting and training 67 private contractors to do safety audits in those states who are unable to implement a new entrant program on their own. While on this issue of private contractors, we ask FMCSA what kind of certification and quality control program will be established to assure the quality of these private contractors? And why should states be precluded from using properly certified private contractors? Shouldn’t this be an option for the states as well? We suggest everyone take a close look at what the Province of Manitoba is doing with respect to private contractors. They are implementing a uniform third party training, testing and accreditation program for use by all Canadian Provinces. CVSA believes there appear to be two possible solutions to this problem. The optimum solution would be to delay the implementation of this program until all jurisdictions are able to implement it and a pilot program has been undertaken that would establish the best way to carry out the program, including the use of private contractors, without encroaching on current state enforcement efforts such as roadside inspections and compliance reviews. MCSIA’99 contains a provision providing for a staging or phasing in of the program precisely to avoid siphoning resources from inspections and compliance reviews. If reauthorization legislation does not pass Congress by September of this year, then this may be the only option because an extension of 2003 funding levels will not leave FMCSA with any dollars at all to fund the program for 2004. The other option, assuming reauthorization passes, is to direct that not less than $13,000,000 of the $16,000,000 FMCSA is reserving for its own efforts to administer and monitor the program go directly to the states. The $13,000,000 when added to the $17,000,000 reserved for the states reaches the $30,000,000 total that CVSA has determined is necessary for the states and obviates the need to cut into the state core inspection grant to fund the new entrant program. We believe that the remaining $3,000,000 should be adequate for FMCSA to exercise program oversight. Border Enforcement Grant Program Funding under this program should not be limited to just the border states. It is very possible that any state in the country could be affected by the opening of the Southern border. A clear example is the necessity for roadside officers to enforce vehicle registrations which is a provision in another part of this bill. Also, although it is not specifically detailed in the bill, FMCSA has otherwise stated in recent testimony that $9,000,000 of this grant program would be used to conduct 200,000 HM inspections at the Northern border. We ask how this money will be allocated to each of the Northern Border states? Will it be allocated as part of their annual MCSAP grant? CDL Program CVSA is pleased at the funding levels provided for a new CDL grant program that range from $22,000,000 in the first year to $25,000,000 in the last year of the bill. We have long advocated the creation of a separate CDL grant program with funding at these levels. But the purpose and conditions for CDL grants to the states are not clearly defined in the proposed Act. Additional statements on this issue by FMCSA at recent hearings still do not define clearly the purpose of the program and do not stress the importance of remedying the many of the documented deficiencies that now exist in the CDL program. Man drivers are not being sanctioned and are causing crashes and fatalities. CVSA recommends that the initial purpose of the grant program should be to encourage all states to undertake a comprehensive self-assessment of their CDL programs as has been done under CVSA (FMCSA funded) pilot program with the states of Massachusetts and West Virginia. The second part of the pilot program would be to specifically identify and implement those steps needed to correct the deficiencies. CVSA recommends that this new grant program: § be modeled after the MCSAP in terms of oversight and procedures, but with a 50/50 match since state licensing agencies have substantial resources through their fee structures § provide accurate and timely driver information to roadside enforcement § establish specific conditions under which grants will be awarded such as the creation of a state interagency task force including all state agencies responsible for administration and enforcement of CDL rules such as the state lead MCSAP agency and judiciary, and the preparation of an annual work plan § require each state to undertake a CDL “Self-Assessment” program modeled after the CVSA pilot program funded by FMCSA under TEA’21. A major goal of this program must be for all states to participate in the grant program because many of the problems must be addressed nationwide to have the maximum impact. CVSA questions the designation of up to 25% of the CDL program for emerging issues without a clear definition of what they are. We believe the comprehensive self-assessment approach we recommend would certainly uncover any emerging issues that need to be addressed. ITS-CVO--Commercial Vehicle Information Systems and Networks Deployment (CVISN) CVISN ties together all of the vehicle, driver and carrier information that roadside inspectors need accurately and in real time. It is a necessary and companion system to make available to the inspector at the roadside, the critical driver information we have discussed with respect to our proposed CDL grant program. Under TEA’21, $184,000,000 was authorized over the life of that bill for the states to deploy CVISN. However, only $40,000,000 actually reached the states with the result that as of today, only 9 states are at a point of being able to deploy CVISN Level I capabilities. Significant resources, $144,000,000 are needed to catch up. We support Section 1704 in the Administration’s bill which is a clear step in the right direction to make up for lost time. By transferring the program to Title I of the Federal-aid-highway program, the funding for CVISN will be “fire-walled” and more protected from the earmarking process which was a major reason that the money authorized for CVISN in TEA’21 did not reach the states. However, the funding levels in Section 1704 are not fully adequate for the states to catch up in deploying CVISN. The allowance of $2.5 million per state falls short of the $144 million needed. Just as important is that the program remains a 50/50 matching program which is not consistent with the 80/20 matching provisions applicable to MCSAP. While the states are allowed to use other federal dollars as a part of the match up to 80%, they may not always be able to take advantage of this exemption from a practice that is otherwise precluded in most grant programs. As we have pointed out earlier in our testimony, in these difficult times, states are having a problem in general in meeting the matching requirements. Enforcement of Commercial Vehicle Registration Requirements The requirement for roadside officers to enforce vehicle registration should not be achieved through an out-of-service declaration, but rather through a “suspend operations declaration”, or something similar. The use of an “out-of-service” declaration would have the effect of adding an item which is not “imminent” hazard to the CVSA Out-of-Service criteria. Use of MCSAP Funds for Local Government or Other Persons In several provisions of Sec. 4002 (@), the Motor Carrier Safety Assistance Program, the Secretary of Transportation is provided the authority to make grants to a State agency, local government, or other person. To preserve the uniformity and integrity of all of programs that are funded under the MCSAP program, it is absolutely essential that in those instances where local governments or other persons may be the applicants, funding must first pass through, and be coordinated by, the state lead MCSAP agency. The hallmark of the CVSA inspection program is uniformity among all states, provinces and territories. To maintain this at the state and provincial level requires constant vigilance on our part. The need for this is just as great, or perhaps even greater, at the local level. The industry deserves this and, in our view, it is the only way to achieve the safety goals that we all support. Uniform Carrier Registration Plan It appears to us that Section 4008, Financial Responsibility for Private Motor Carriers, is the appropriate section to again direct the establishment of the Uniform Carrier Registration (UCR) program, which was first required in the ICC Termination Act. CVSA supports the legislation developed by an industry task force that would establish a new UCR program to supercede the existing Single State Registration System (SSRS) which now applies only to for-hire carriers in 38 states. In addition, and of great importance to CVSA, is that this industry proposal would guarantee that states would be reimbursed for those SSRS proceeds currently being used for motor carrier safety enforcement. Interstate Operations of Interstate Motor Carriers CVSA supports Section 4011 in the FMCSA proposal that would allow capture of intra-state violation data on a carrier that also operates in interstate commerce. In addition, we support the measure that would apply an out of service order on an interstate carrier to its intra-state operations as well. FMCSA Authority to Stop Commercial Vehicles CVSA recommends that this grant of authority to FMCSA in Section 4012 should be confined to border situations. We do not believe the Administration or Congress is interested in creating a new police force. This provision could be interpreted as an intention of FMCSA to assume control of all, or part of, the existing state inspection program and we recommend additional language in this section that would confine the prescribed FMCSA authority “in the vicinity of an inspection site at the border”. We also believe that Section 4012 would be an appropriate Section in the DOT proposal to more clearly reflect the process by which the North American Standard Inspection and Out of Service Criteria are developed and implemented by CVSA. Section 31102(b)(1)(J) Title 49, United States Code, should be amended by adding the following language: “This North American Standard Inspection and North American Standard Out of Service Criteria and decal program are developed by the Commercial Vehicle Safety Alliance and are identified in Parts 350, 385, and 390 of the Federal Motor Carrier Safety Regulations. We believe there is precedent for our recommendation in the NAFTA border safety provisions of the 2001 Transportation Appropriations bill passed by the Congress. International Cooperation We fully support the intent of Section 4015. Given the fact that hopefully our Southern border will soon be open to Mexican truck and bus traffic and our longstanding seamless operations at the Northern border with Canada and its Provinces, we need to foster greater participation and cooperation in international activities that would that enhance highway safety through exchange of information, conducting research, and examining needs, best practices, and new technology. One reason for our support is that this best describes what CVSA does as an alliance. We would make one very important recommendation that we believe supports the intent of this section. It is that data from Canadian and Mexican inspections of U.S. commercial vehicles should be allowed to be used by FMCSA for purposes of carrier ratings and possible enforcement actions. Also, financial consideration should be given to Canada and Mexico for their inspection and enforcement efforts in this regard. Truck Rest Areas We do not believe that the proposal in Section 1306, Title I of the Federal-aid Highway Act adequately address the overall problem of the shortage of adequate rest areas for truck drivers. We do not need any more studies or pilot projects in this regard. But we do believe that the proposal adopted by the American Trucking Associations and the National Truck Stop Operators will address the problem. It would establish a public-private partnership through the creation of a Parking Assistance Resource Corporation (PARC) to do the following: § identify the locations of truck parking shortages and the reasons for them § develop best practices and recommended minimum design, security and lighting requirements § review and prioritize applications from private enterprise aimed at alleviating the shortage at specific locations and make corresponding recommendations to the DOT Secretary § identify specific NHS corridors where regional and multi-state strategies would be effective in solving the problem PARC would be funded with a grant from the Federal Highway Administration and be governed by a Board of Directors comprised of representatives from FMCSA, ATA, TCA, NATSO, AAA, and CVSA. Training Passenger Car Drivers to Drive in the Vicinity of Commercial Vehicles CVSA supports the provision in Section 4002 under MCSAP that would require the states to revise their driver training manuals for passenger car drivers to include information and best practices for driving in the vicinity of commercial vehicles. However, we suggest that any administrative costs be funded by the state licensing agency that has jurisdiction over passenger car drivers. We believe that when appropriate, other state agencies must share the responsibility for highway safety. Motor Carrier Advisory Committee A Motor Carrier Safety Advisory Committee should be established by FMCSA. Section 105 of the Motor Carrier Safety Improvement Act of 1999 authorized the Secretary of Transportation to establish a commercial motor vehicle safety advisory committee to provide advice and recommendations on a wide range of motor carrier safety issues. The advisory committee was to remain in effect until September 30,2003. This never happened and CVSA believes the need to establish such a committee still exists. .
Ms. Joan B. ClaybrookPresidentPublic Citizen
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