Eno Transportation Weekly
New FMCSA Administrator in Hot Seat at House Subcommittee Hearing
May 23, 2018
House Members grilled recently confirmed Federal Motor Carrier Safety Administrator Ray Martinez on the delayed implementation of motor carrier provisions of the FAST Act at a hearing of the House Subcommittee on Highways and Transit on Tuesday.
The hearing also included a panel of motor carrier stakeholders, including Dale Krapf, chairman of Krapf Transportation who testified on behalf of the bus industry; Mike VanMaanan, owner of Eastern Missouri Commission Company who testified on behalf of the Livestock Marketing Association; Captain Christopher Turner, president of the Commercial Vehicle Safety Alliance; and Jennifer Tierney, board member at Citizens for Reliable and Safe Highways who testified on behalf of the Truck Safety Coalition.
The Fixing America’s Surface Transportation (FAST) Act, signed into law in December 2015, contained a number of provisions related to motor carriers that the Federal Motor Carrier Safety Administration (FMCSA) is now responsible for implementing. The law consolidates and increases funding for motor carrier grant programs, requires FMCSA to reform its Compliance, Safety, Accountability (CSA) program which tracks unsafe truck and bus companies, and provides for the establishment of programs to enable veterans and reserve members to transition into commercial driving careers.
The goal of these provisions, according to House Transportation and Infrastructure Committee Chairman Bill Shuster (R-PA), was to “provide some regulatory relief while still providing a high level of safety.” But as the hearing made clear, many of the provisions have yet to be implemented, and Members are taking notice.
Martinez Questioned on Rulemaking Delays
Among the FAST Act’s motor carrier provisions, FMCSA was required to reform its CSA program based on recommendations that would be made by the National Academy of Sciences, Engineer, and Medicine (NAS). NAS’s report was released in June 2017, and FMCSA was required to submit a corrective action plan to Congress by October 25, 2017. Seven months later, that plan is nowhere to be found.
CSA is FMCSA’s safety compliance and enforcement program. It uses data from roadside inspections and crash reports to identify carriers with safety and compliance problems, prioritizing them for agency intervention—which could include anything from a warning letter to an operation out of service order (OOSO) requiring the carrier to immediately cease operations. FMCSA also implements a Safety Fitness Determination rating system to determine the safety fitness of motor carriers and remove carriers deemed unfit to operate.
NAS’s report found that the program was “conceptually sound” but recommended a number of improvements, including working with states and other agencies to improve its data collection and collecting additional data on carrier characteristics that could affect crash rates.
Subcommittee Ranking Member Eleanor Holmes-North (D-D.C.) summarized her frustration with FMCSA’s failure to turn in its report on how it will implement NAS’s recommendations: “The agency does not have a reliable, easy to read system to verify the safety of a motor carrier.”
Martinez, who has only been in the role since March 1, said the overdue report is “in final departmental review” and “forthcoming,” but when pressed by Norton could not give a more specific timeframe for when Congress would see it. He assured the subcommittee, however, that FMCSA has “fully accepted” NAS’s recommendations and plan to move forward on them.
The overdue report was not the only delay Members sought answers for. With regards to the Safety Fitness Determination rule, Norton pointed out that 40 percent of the motor carriers’ ratings are more than a decade old. The industry has asked for a “bright line safety test” that would mark all carriers simply as “safe” or “unsafe.” That effort has been underway at FMCSA for 10 years.
“The time has come for ensuring that the agency that is responsible for truck and bus safety actually issues safety ratings,” Norton said.
Martinez demurred on this, as well, agreeing on the problem but not providing a timeline for the solution. He called it a case of “bad data in, bad data out,” saying FMCSA was focused on first making sure they are gathering the right data.
Several Members, mostly on the Republican side, quizzed Martinez on the progress FMCSA is making on its pilot program to allow veterans with appropriate training to more easily transition into commercial driving careers, and to allow veterans and reserve members aged 18 to 21 to do interstate drives. (Currently, all 48 continguous states allow 18-year-olds to get commercial drivers licenses and complete intra-state drives, but nobody under the age of 21 can drive a commercial truck across state lines.)
Martinez said the pilot program should be up and running by early next year, which did not seem to satisfy Reps. Duncan Hunter (R-CA), Doug LaMalfa (R-CA), or Chairman Shuster, all of whom asked about the pilot program.
Finally, House Transportation and Infrastructure Committee Ranking Member Peter DeFazio (D-OR) took issue with FMCSA’s failure to raise the insurance limits on motor carriers’ claims, saying they do not adequately cover catastrophic coverage. Congress established the limit at $750,000 in 1980, and it has not been lifted since then. Based on increased medical costs, DeFazio said, that number should now be closer to $3 million.
Martinez again agreed on the problem but said much of the relevant information from the insurance industry that would inform FMCSA to move forward was proprietary and the agency does not have access to it.
That was a common theme during Martinez’s question and answer period: the FAST Act requires FMCSA to “[use] the best available science” in its rulemaking, and the agency now seems to be using that provision as cover, as the Administrator frequently said it was still gathering the right data when asked why certain rules were so far behind schedule.
Arguably, nobody was more frustrated about the delays than Captain Turner, citing a “growing trend of lack of progress on critical issues” on FMCSA’s part. “No matter where you stand on the role of government and regulations, we should all be able to agree that maintaining the regulations, keeping them current and clear, is a necessary and important function,” he said. These delays are “engrained in the culture of the agency,” he said, “and it must be addressed.”
Who’s Required to Use Electronic Loggig Devices?
Another issue that received a lot of attention at the hearing was the electronic logging devices (ELDs) mandated for use by most motor carriers as part of MAP-21. The provision required carriers to move from paper logs to electronic time keeping to better ensure they are not driving more than the allowed number of hours (in other words, that they are getting enough rest).
The implementation of the mandate seems successful on paper: Martinez noted that of the 300,000 inspections conducted since April 1, less than one percent were cited for failing to have an ELD when required.
But who is required to use an ELD and who isn’t was the subject of debate. Several industries have been granted waivers for a variety of reasons, including two 90-day waiters for agriculture transportation, a five-year waiver for the Motion Picture Association of America (MPAA), and a five-year waiver for California company Rail Delivery Services.
Rep. Brian Babin (R-TX) took particular issue with MPAA’s waiver, questioning why “Hollywood” got a waiver and not small business trucking fleets with excellent safety records. Martinez explained that MPAA is in a “unique” situation as their workers are on set most of the day (thus not driving) and often work for more than one company per day.
Rep. Doug LaMalfa (R-CA) echoed Rep. Babin’s concern, pointing out that livestock haulers have a “greater responsibility and a very strong safety record” and yet are not waived from the ELD mandate. This was corroborated by VanMaanen, who called ELDs “unforgiving.” He said that when drivers run out of time, they are faced with the “grim prospect” of having to unload their livestock for 10 hours or leaving them in the trailer—either of which is bad for the livestock.
Martinez seemed open to allowing the agriculture transport sector—including livestock hauling—additional flexibility.
Improving Carrier Safety
Tierney sounded the alarm on truck safety. She pointed out that annual truck crash fatalities have increased 28 percent since 2009, and in 2016 nearly 4,400 people were killed in truck crashes. Early 2017 data, she said, indicates that number rising another 10 percent.
Tierney listed a host of safety measures motor carriers should implement (and that Congress should mandate), from automatic emergency braking to underride guards on all sides of the truck.
Asked by Rep. Steve Cohen (D-TN) whether the industry would voluntarily self-regulate, Tierney said that some in the industry have voluntarily implemented some of these changes, “but others have not and probably would not. Therefore I do believe that a mandate is needed.”
Tierney’s suggestions were mostly truck-centered. But as Chairman Shuster pointed out, truck drivers are not at fault in 75 percent of the accidents in which they are involved.
A major problem with the CSA program as it exists today is that drivers still get dinged in their rating even when the accident is not their fault, making it harder for them to get hired. Several members, including Subcommittee Chairman Graves and Rep. Bob Gibbs (R-OH), asked Martinez to address this.
FMCSA now has a crash preventability pilot program (mandated by the FAST Act) so carriers can report a crash as “not preventable” (by the motor carrier) and have it removed from their score. Over 3,700 of these have been submitted so far. Martinez suggested ultimately displaying two scores to the public: the first would be the existing “raw data” score, followed by a second score that removes these “not-preventable crashes.”
By comparison, Krapf pointed out that there are so few fatalities in the bussing industry (20 annually among motor coaches, five annually among school busses), that any fatality record becomes a major stain on the company’s reputation. Krapf Transportation experienced this first-hand in October 2017 when an SUV crossed the median and struck one of his busses, killing the car driver.
The bus industry as a whole has a near-sterling safety record compared to commercial trucking. Rep. Rodney Davis (R-IL) pointed out that since mid 1970s, the U.S. has doubled the number of buses on the road and tripled the number of bus miles traveled, but decreased bus accidents by 30 percent.
Martinez attributed the success to FMCSA having a “very close relationship” with the bus industry. “They know what we’re looking for. We really don’t want to write violations; we’d prefer that everyone knows what’s required.” He cited the combination of education, continued enforcement efforts that are uniform, and improvements to the busses themselves.
Watch the full hearing and read the witnesses’ prepared testimony here.