Senate Commerce, Science and Transportation Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security Hearing

Good afternoon Chairman Blumenthal, Ranking Member Blunt, and Members of the Surface Transportation and Merchant Marine Infrastructure, Safety, and Security Subcommittee of the Senate Committee on Commerce, Science and Transportation. Thank you for inviting me to testify before you today. I am Joan Claybrook, Consumer Co-Chair of Advocates for Highway and Auto Safety (Advocates) and former Administrator of the National Highway Traffic Safety Administration.

Founded in 1989, Advocates is a coalition of consumer, health and safety groups and major insurance companies working together to promote safety on our roads and highways by advocating for laws and regulations that prevent crashes, save lives and reduce injuries. Advocates is a unique coalition dedicated to improving traffic safety by addressing motor vehicle crashes as a public health issue. One of our major safety priorities is the unnecessary and unacceptable death and injury toll caused by truck crashes. I appreciate being invited to testify before you today on the opportunities and challenges for improving truck safety on our highways.

Introduction

Advocates has been involved in the issue of motor carrier safety and truck driver hours of service regulations for 25 years, and with good reason. Truck crashes are a serious, deadly and costly problem to families, our health care system, and to the economy. Government data and statistics illustrate the emotional and economic toll of large truck crashes on the public. Large truck crashes killed 3,921 people and injured another 104,000 in 2012. n1 Over the past decade (based on the most recent available data from 2003 through 2012), large truck crashes have claimed, on average, the lives of over 4,000 people and injured nearly 100,000 each year. n2 This is equivalent to a major airplane crash every week all year long. In the past ten years a total of 44,204 people have been killed and nearly one million people have been injured in crashes involving large trucks. n3 Despite declines in the overall fatality and injury statistics during the 2008-2009 recession, fatalities and injuries in large truck crashes have experienced increases every year since 2009. The fatality total has increased by 16 percent and the number of people injured has increased by 40 percent since the low point in 2009. n4 Of the people killed in crashes involving large trucks in 2012, 73 percent were occupants of other vehicles, 18 percent were occupants of large trucks, and 10 percent were non-occupants (pedestrians, pedal cyclists, etc.). n5 The annual cost to society from crashes involving commercial motor vehicles is estimated to be over $99 billion. n6

Advocates is gravely concerned with the recent increases in truck crash deaths and injuries as these numbers continue their march toward a return to pre-recession levels. Unfortunately, several deeply flawed U.S. Department of Transportation (DOT) initiatives as well as adoption of special interest rollbacks in safety regulations will only contribute to the mounting death and injury toll unless changes and course corrections are implemented. My testimony this afternoon addresses several of these major issues related to commercial motor carrier regulation and truck safety policy, including the attack on the safety reforms incorporated in the 2011 hours of service rule, the on-going problems with the credibility and reliability of the DOT Comprehensive Truck Size and Weight Limits Study and the weakening of important motor carrier and truck provisions in the Generating Renewal, Opportunity, and Work with Accelerated Mobility, Efficiency, and Rebuilding of Infrastructure and Communities throughout America Act, known as the GROW AMERICA Act, recently released by the Administration and introduced in the House of Representatives as H.R. 4834.

Safety Reform of the 34-Hour Restart Rule Under Attack by Special Trucking Interests

Driving a commercial motor vehicle (CMV) is a challenging, exhausting and dangerous occupation; extremely long work weeks are just one of many factors contributing to this reality. Truck driving continues to be identified as one of the most dangerous occupations in the United States. n7 Nearly 600 drivers of large trucks were killed in 2012 and another 21,000 were injured in truck crashes. n8 More fatal work injuries resulted from transportation incidents than from any other event in 2012. n9 Roadway incidents alone accounted for one out of every four fatal work injuries. n10 Despite these facts, CMV drivers are exempt from the maximum hours and overtime requirements of the Fair Labor Standards Act n11 which govern compensation for employees working more than 40 hours a week. Since 1938, CMV drivers have been limited to driving within the first 60 or 70 hours of their work week (depending on their schedule). Prior to the 2003 final rule, a truck driver who used all 60 or 70 driving hours was not allowed to drive again until their 7 or 8 day work week was over and a new work week began. This ensured that drivers were provided a full weekend off-duty to rest and recover from the arduous driving schedule.

The 2003 Hours of Service (HOS) final rule, however, instituted the 34-hour restart which allows drivers to restart their 60 or 70 hour driving limit at any point during the work week by taking just 34 hours off duty; this is in comparison with the normal weekend of about 60 hours off for people working a 9-to-5 job. The trucking industry embraced this change because it increases the average maximum work week to 82 hours; more than double the time the average American works. This increase in driving and work hours enabled the industry to realize a huge cost savings by using fewer drivers to move the same amount of freight and eliminating 48,000 trucking jobs. n12 Many drivers are paid by the mile, meaning that if the truck isn't moving, the driver isn't earning. Aside from encouraging truck drivers to drive as long and as fast as possible, the complete opposite motivation from what is needed from a safety viewpoint, this also means that drivers viewed the restart as a way to increase their paychecks. In short, the unrestricted 34-hour restart, as implemented in the 2003 final rule, was a giveaway to the industry that allows motor carriers to cut their bottom line, overwork drivers even more, and in the process convince drivers that it was all for their benefit.

Advocates opposed the unfettered use of the 34-hour restart since it was first adopted in the 2003 HOS final rule. n13 The reason is that the restart provision allows long-haul truck drivers to drive and work more hours, and therefore get less off-duty rest, each week than was permitted before the 2003 HOS rule was adopted. The startling decline in driver sleep and increase in driver fatigue was documented in the results of an anonymous 2006 survey of truck drivers sponsored by the Federal Motor Carrier Safety Administration (FMCSA) which reported:

About 38 percent of the drivers said they sometimes and 6.7 percent said they often had trouble staying awake while driving. About 13 percent reported that they often or sometimes fall asleep while driving; 47.6 percent said they had fallen asleep while driving in the previous year. Although only 23.4 percent said they often or sometimes felt fatigued while driving, 65 percent reported that they often or sometimes felt drowsy while driving. A third of the drivers reported that they became fatigued on a half or more of their trips. n14

The survey was conducted after the 2003 HOS final rule was implemented and the unrestricted 34-hour restart provision went into effect. The survey showed that nearly two-thirds of truck drivers surveyed (65 percent) admitted to driving while tired and nearly half (48 percent) reported that they actually fell asleep behind the wheel while driving in the previous year. n15 These self-reports, which most likely underestimate the true extent of the fatigue problem, indicate that many truck drivers were operating vehicles while tired or fatigued under those HOS rules.

Equally troubling is the fact that truck drivers reportedly obtained far less than 7 hours of sleep each night, well below the 7 to 8 hours of sleep the agency had found drivers needed to be alert and to perform the driving task safely. According to the FMCSA:

The studies of restricted sleep show that over days of mild, moderate, or severe sleep restriction (1) alertness and performance degrade as cumulative sleep debt rises; (2) even mild sleep restriction (loss of less than 1 hour of sleep a day) degrades performance over days. Seven to 8 hours of consolidated night-time sleep in each 24 hours appear to sustain performance over multiple days, if not longer, for most people. n16

This scientific finding about the dangers of restricted sleep is troubling because truck drivers were found to get less than 7 hours of sleep each day. n17 This fact is supported by other research that has shown that adults in the general population who reported getting an average of less than 7 hours of sleep a day were more than twice as likely to report nodding off or falling asleep while driving in the previous 30 days compared to adults who received more than 7 hours of sleep. n18 Lack of sleep among truck drivers explains the high levels of driver fatigue and fatigue-related crashes that occur. Advocates has opposed allowing the unrestricted use of a 34-hour restart because the unrestricted 34-hour restart permits drivers to maximize their work hours, up to 82 hours of work and driving on average each week, and contributing to driver fatigue.

Advocates favored rescinding unfettered use of the 34 hour restart because rather than provide workers with needed rest, it in fact increases the hours they can drive and work from 70 to 82 hours a week. However, since the 34-hour restart has not been rescinded, Advocates supports the safety reforms adopted by the FMCSA in the 2011 HOS final rule which were only implemented one year ago in 2013. The reforms included three adjustments to the prior HOS rules: the implementation of a half hour rest break within 8 hours of reporting for duty, and two limitations on the use of the 34-hour restart. Prior to the 2011 final rule, drivers were able to restart their weekly driving hour limits by taking an abbreviated 34-hour off-duty period at any point in their schedule. The unfettered use of the restart enabled drivers to work and drive an average maximum work week of 82 hours. The 2011 final rule modified the 2003 HOS rule by requiring that at least 168 hours (7 days) elapse from the start of one 34-hour restart before the next restart can be taken. The other safety reform requires that each 34-hour restart include two time periods between 1 a.m. and 5 a.m. Both of these reforms to the restart option ensure that long-haul truck drivers have additional opportunities to rest and recover from their prior work week of 60 or 70 hours of driving, and additional hours of other work, before getting behind the wheel for the start of their next long work week.

The FMCSA included an explanation of the necessity and benefits of these changes in the 2011 final rule:

Because research has shown that long weekly work hours are associated with a higher risk of crashes, sleep loss, and negative health effects, the rule also limits the use of the restart to once a week, which, on average, will cut the maximum work week from 82 to 70 hours. The provision allows drivers to work intensely for one week, but will require them to compensate by taking more time off in the following week. Research has long demonstrated that daytime sleep is shorter in duration and lower in quality than nighttime sleep. The rule requires any driver working long enough to need a restart to take off at least 34 consecutive hours that include 2 periods between 1 a.m. and 5 a.m., the window of circadian low. This provision will give those drivers who both routinely work at night and put in very long work weeks an opportunity to overcome the chronic fatigue that can build up when working nights. n19

Driver fatigue plays a significant role in a substantial number of truck crashes. In the 2011 HOS final rule, the FMCSA relied on the estimate that 13 percent of large truck crashes were due to fatigue. The Agency supported this estimate in its response to comments during the regulatory process when it identified that the Regulatory Impact Analysis (RIA) for the 2000 Notice of Proposed Rulemaking (NPRM) used a 15 percent estimate. The RIAs for the 2003 and 2007 rules also used a 15 percent estimate in the sensitivity analyses. Furthermore, the National Transportation Safety Board (NTSB) observed that "truck driver fatigue may be a contributing factor in as many as 30 to 40 percent of all heavy truck accidents." n20

The FMCSA's estimate is based on an analysis of the Large Truck Crash Causation Study (LTCCS) in which it found that truck driver fatigue was coded as a factor in 13 percent of all crashes. n21 In 2012, there were 317,000 police reported motor vehicle crashes involving large trucks, including 3,464 fatal crashes, 73,000 injury crashes, and 241,000 property damage only crashes. n22 At 13 percent involvement rate (one in eight crashes), fatigue was likely a factor in as many as 41,000 crashes. This is likely a conservative estimate considering that fatigue is notoriously hard to identify short of a confession or direct observation of a sleeping driver, something the agency acknowledged in the final rule when it noted that "fatigue is difficult to determine after the fact". n23 Because their jobs are on the line, drivers will rarely acknowledge they were sleeping or fatigued when driving. Regardless, the sheer scale of the problem is clear evidence of the impact improvements in driver fatigue can have on safety and saving lives.

Moreover, at the direction of Congress in section 32301 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, the FMCSA recently completed a field study of the restart provisions in the 2011 final rule. The findings of the study were conclusive that restarts with two or more nighttime periods, as required under the 2011 HOS final rule, helped to mitigate fatigue when compared with restarts with only a single nighttime period as had previously been allowed. The study found that drivers using 34-hour restarts with only one-nighttime period:

. Exhibited more lapses of attention, especially at night.

. Reported greater sleepiness, especially toward the end of their duty cycles.

. Showed increased lane deviations at night and in the morning and afternoon.

. Slept predominantly during the day.

. Worked predominantly during the night.

. Drove longer hours and typically at night. n24

In summary, the once-per-week limit on the use of the 34-hour restart, on average, cuts the maximum work week from 82 to 70 hours. This is still a lengthy work week which is nearly double the total work hours of the average American. The provision also still enables drivers to alternate extended work weeks with shorter work weeks, providing truck drivers with the flexibility necessary to meet the demands of today's freight industry. Similarly, the requirement to take two overnight off-duty periods between 1 a.m. and 5 a.m. ensures that if a driver uses the 34-hour restart to extend the work week beyond the 60- or 70-hour driving limit (depending on their work schedule) the rest period will contain two night-time periods to permit the driver to obtain the most restorative type of sleep. A minimum of two night-time periods is needed to prepare him/her for the rigors of the extended work week and the demanding job of safely operating a commercial motor vehicle weighing 80,000 lbs. on our highways shared with other motorists.

On June 5, 2014, the Senate Committee on Appropriations held a Markup of the Transportation, Housing and Urban Development (THUD) Appropriations Act for 2015, n25 during which Senator Susan Collins (R-ME) introduced an amendment which prohibits the DOT from enforcing the safety reforms adopted by the FMCSA in the 2011 HOS final rule. n26 The amendment passed despite opposition from Advocates and child, truck and highway safety groups, labor, truck crash victims, law enforcement, consumer, medical and public health organizations as well as several large trucking companies and U.S. DOT. The Collins Amendment, Section 133 of the THUD bill, would not only undermine the safety reforms to the 34-hour restart that the expert agency, the FMCSA, has determined improve public safety on our highways, but it would also usurp the jurisdiction of the authorizing body, the Commerce Committee and this Subcommittee, by legislating a substantive change in federal law on an appropriations bill. We oppose Section 133 of the Senate THUD bill on both safety and jurisdictional grounds and support the Booker Amendment which would retain a study of the 34-hour restart and strike the anti-truck safety provisions from the Senate THUD bill. This amendment, which was introduced by Senator Cory Booker (D-NJ) on the Senate Floor on June 18, 2014, is co-sponsored by Senators Richard Blumenthal (D-CT), Barbara Boxer (D-CA), Sherrod Brown (D-OH), Richard Durbin (D-IL), Dianne Feinstein (D-CA), Kirsten Gillibrand (D-NY), Mazie Hirono (D-HI), Edward Markey (D-MA), Robert Menendez (D-NJ), Christopher Murphy (D-CT), Jay Rockefeller (D-WV), Brian Schatz (D-HI), Charles Schumer (D-NY) and Elizabeth Warren (D-MA). The THUD bill was pulled from consideration on the Floor on June 19, 2014.

Opponents of the recent changes to the HOS restart provisions have claimed that the new limitations force drivers to take a break when they aren't tired and then, following the break, force them back on the road all at the same exact time. These assertions are patently false and have no factual basis. First, the HOS rules do not govern sleep, but merely ensure that carriers must provide drivers with ample time for drivers to obtain needed rest. Second, the HOS provisions do not specify when a restart must be taken or when a driver must return to duty following a restart. The rule requires only that any restart taken must end no earlier than 5:00 a.m. at the end of the 34-hour restart period, but the rule does not require or suggest that a driver must start operating at that exact moment.

Furthermore, the rule does not state in any way, shape, or form that drivers must all take their restarts at the exact same time on the exact same day. Restarts occur on different days of the week. If the claims of the rule's opponents were accurate, that would mean that all 5.6 million commercial motor vehicle drivers operating in the U.S., across the myriad of industries they serve, would all be maximizing the use of their hours, would all be on the exact same schedule, and would all be returning to duty at the same time and same day of the week all year long. This just does not happen; this is not the way the system works. The fact is the restart limitations only affect a relatively small percentage of drivers, those operating on the most extreme schedules, and it is those drivers who need and benefit from the 34-hour restart safety reforms in order to be able to perform their jobs properly and to drive their long hours safely.

Due to the high levels of fatigue self-reported by truck drivers since the 34-hour restart was adopted, the increasing number of truck crashes, deaths and injuries that are occurring as the economy recovers, and the increasing level of freight tonnage being shipped by truck, the reasonable safety reforms to curb the negative impact of the 34-hour restart are essential to protect the travelling public and the safety of truck drivers on our highways. No other mode of freight transportation comes close to causing the mortality and morbidity toll of truck crashes. It is not acceptable, agreeable or reasonable that special trucking interests are asking the public, professional truck drivers and lawmakers to accept these enormous losses as a cost of doing business in moving freight by trucks across our country.

Serious Problems Plague the Credibility and Reliability of the DOT Comprehensive Truck Size and Weight Limits Study

The American people are clearly opposed to having larger trucks on the highways besides them. A May 2013 public opinion poll by Lake Research Partners found that 68 percent of Americans oppose heavier trucks and 88 percent of Americans do not want to pay higher taxes for the damage caused by heavier trucks. n27 Attached to my testimony is a summary of public opinion polls that show the high-levels of opposition to bigger, heavier trucks that the American public has steadily maintained over the past 19 years. I request that this document be placed in the hearing record. In MAP-21, Congress required the Secretary of Transportation to conduct a comprehensive study of truck size and weight issues (Study) including the safety performance of trucks that would be bigger or heavier (or both) than current truck size and weight configurations. n28 This Study is intended to advise Congress and the American people about whether allowing larger trucks on the highway is a wise policy choice. That is why we are so concerned about the incredibly inadequate manner in which this Study has been conducted to date. The Study has run into serious problems in its approach and methodology; these issues cannot be ignored and must be resolved before the Study is completed.

The Study is being conducted by the Federal Highway Administration (FHWA), a modal Administration within the DOT. The Study ran into problems from the outset when the FHWA did not publish a public bid notice or issue an open public request for proposals (RFP), but rather sent the contract terms and solicitation to a select group of just four contracting companies. While not exactly a "no-bid" contract, the letting of the contract and restricting the pool of consultants was not a transparent transaction. Moreover, the contractor selected through this closed bid process came with a built-in bias against existing truck size and weight limits. The general contractor selected has previously performed studies for several states and, in each and every instance, found that the states could and should increase truck size or weight limits, or both, on state roads. The contractor's reports also promoted and encouraged increases in federal size and weight limits. n29 The prior history and record of the contractor on these specific issues should have immediately raised red flags. The contractor's clear track record of support for increases in truck size and weight at the state level should have disqualified the company from consideration as the general contractor for the Study.

Criticism of the Study plan has also come from the National Academy of Sciences (NAS) Peer Review Committee on the Comprehensive Truck Size and Weight Limits Study. The NAS established a Peer Review Committee at the request of DOT after safety groups demanded an outside review of the DOT study plan and implementation of the Study. We believed it necessary to have an independent review of, and check on, the work performed by the Study contractor and the FHWA supervisory staff by outside experts. Then- Transportation Secretary Ray LaHood agreed. The NAS Peer Review Committee was asked to file two reports, one after the initial phase of the Study and another after the Study is completed but still in draft form.

The report on the initial phase of the project was issued by the NAS Peer Review Committee in March 2014 and it critiqued the approach taken by FHWA and its contractor in the Study plans and literature searches (desk scans) in each of the five subject matter areas that are part of the Study. n30 While such initial phase reports are usually only a few pages in length, the NAS Peer Review Committee issued an extensive 51-page report (NAS Report) on the initial phase of the Study finding numerous and serious problems and errors in the work performed. n31 The entirety of the criticisms and problems found by the Peer Review Committee in the NAS Report are too extensive to list here. I will provide some examples taken from the NAS Report's review of the Highway Safety and Bridge subject matter areas. A more complete summary of all the NAS Report criticisms of the Study are attached to my testimony, which I also request be submitted for the hearing record.

With regard to Highway Safety, the NAS Report pointed out that the Study plan and the desk scan for the Highway Safety area neglected, without any explanation, to include a number of pertinent and well-known studies by credible researchers on truck crash severity and brake defects, including case-control studies that are the most valuable means of controlling for driver experience and driving records in analyzing crash risk. n32 Moreover, the Study plans and desk scans also inexplicably ignored the FHWA's own previous study of truck size and weight issues conducted in 2000 which concluded that longer combination vehicles have a statistically significant (11 percent) higher crash rate than single-trailer trucks. n33

The NAS Report also pointed out that while the desk scans included references to regulations in foreign countries that permit longer combination vehicles (LCVs), "the review of safety research does not cover studies of the effectiveness of such regulations in mitigating hazards associated with larger trucks." n34 These are just a few of the criticisms raised in the NAS Report in the safety area. The Study plans and desk scans also failed to identify a more recent analysis that indicates that double-trailer trucks have about a 15 percent higher fatal crash rate than single-trailer combinations, and that single-trailer trucks with six or more axles have an extremely high fatal crash rate compared to the overall single-trailer truck fatal crash involvement rate. n35 The type of omissions noted in the NAS Report indicates a distinct and seemingly deliberate pattern of overlooking safety information and data that show the negative aspects of longer, heavier trucks while including all information that might be considered favorable to longer, heavier trucks.

Advocates has criticized the reliance of the Study on voluntary industry-supplied data provided by selected segments of the trucking industry because it introduces bias into the Study data analysis. Voluntary data and information cannot be independently verified and likely exclude unfavorable negative data and information that proponents of longer, heavier trucks may not wish to provide. Moreover, the source of the data and information is a stakeholder with a strong economic interest in the outcome of the Study and therefore, the use of voluntary industry-provided data is unacceptable.

In addition, Advocates is concerned with the use of a static "snapshot" of freight tonnage, ignoring estimated future increases in truck freight shipments. This assumption allows the Study to conclude that heavier/larger trucks, which carry more freight, will make fewer trips and result in fewer trucks on the road. This is a false premise. The number of registered trucks in the U.S. has continually increased, including after each past increase in truck size and weight limits. n36 FHWA confirms this trend documenting that the number of large trucks increased by nearly 42 percent between 1987 and 2002, and that the vehicle miles traveled (VMT) by large trucks increased by 50 percent over the same time period. n37

For the Study, the FHWA has adopted a "no forecasting policy" with regard to future freight tonnage shipped by truck. This decision contradicts the FHWA's own estimate of a significant increase in shipments - a 63 percent increase in truck freight by 2040. n38 Therefore, the Study is at complete odds with what will occur in the real world - there will be more large trucks, not fewer large trucks, carrying freight in the future, and that an appreciable percentage of those truck trips will be made by heavier and/or larger, longer truck combinations depending on the analysis of the Study. This fact cannot and should not be ignored in the analysis of the Study. In addition, since the estimated increases in freight demand also predict that trucking will be the predominant mode for most of the increases in freight movement - and trucking is, comparatively, the most dangerous mode from a safety standpoint - the shift to larger/heavier trucks may exacerbate the significant safety losses already incurred in trucking operations.

Failure to take expected growth of freight into account is unrealistic and objectionable and will severely damage the validity of the Study, limit its use as a policy tool, and provide misleading results to Congress.

Additionally, the Study is using crash and operating data on LCVs currently conducted in sparsely populated, rural states and carried out under special controls and restrictions. This data cannot be readily transferred or extrapolated for application to more densely populated states and urban areas as the 2000 DOT Comprehensive Truck Size and Weight Study clearly pointed out. n39 Yet, this is exactly what FHWA intends to do in the Study. The safety performance of extra-long double and triple-trailer trucks operating in a state like Wyoming should not, indeed cannot, be used to support conclusions about the safety performance of these gigantic rigs operating in densely populated, more urban states in the eastern United States.

The NAS Report also identifies many other problems in its review of the bridge structure desk scan, and validates criticisms made by Advocates and many others that the methods employed in the Study are not objective or comprehensive. For example, the NAS Report:

. Points out that the bridge desk scan "does not include a comparative evaluation of alternative methods of assessing bridge costs of changes in size and weight limits[,]" n40 and "does not review the results of past studies of the effects of changes in truck traffic on bridges." n41

. Concludes that the references supplied in the desk scan "appear to be primarily those that are necessary to support a predetermined plan of analysis" n42 rather than a search for pertinent and related data and information on bridge structures.

. States that the "principal risk of changes in [weight] limits is that the bridge inventories will decay more rapidly than expected[,]" n43 yet the bridge desk scan "does not identify methods or data sources to support estimates of the impacts of changes in [weight] limits on bridge barriers, medians barriers, or railings." n44

It appears that the Study authors do not feel the need to review or document how they plan to estimate bridge deterioration costs that result from any specific change in truck weight limits. Perhaps they have a preconceived view which is not supported in the desk scan or maybe they are making it up as they go along. The lack of transparency in the process prevents us from knowing the answer to this conundrum.

The final example I will mention of the problems in the bridge desk scan critiqued in the NAS Report is the fact that the Study authors plan to base the entire national bridge analysis on the 2010 District of Columbia Department of Transportation (DCDOT) truck size and weight study. However, as the NAS Report points out, that particular study is unpublished. It is unknown just how the analysis performed for an urban jurisdiction with fewer than 300 bridges will apply to and affect the national bridge inventory of over 600,000 bridges. Since the DCDOT truck size and weight analysis is unpublished, it is unknown if the methodology used in that analysis, even with modifications, has been tested and would be successful at producing an accurate analysis and national estimate. In short, it is ludicrous for a national, and supposedly comprehensive, truck size and weight study to rely on a bridge study conducted in an urbanized city and an unpublished and unverified means of analysis for a critical and essential portion of the Study.

The NAS Peer Review Committee Report made the following over-arching points about deficiencies of the Study:

. The available methods of analysis for use in the Study have "significant weakness" which have not been addressed. n45 The use of these compromised methods will impact the ability of the study to predict the results of changes in truck size and weight regulations and the Study conclusion will be of limited use in crafting future policy.

. The Study has been conducted in a backwards fashion, with the Study plans and methods of analyses determined before the desk scan review of available research and information was performed, stating that "in most cases the selection of methods appears not to have been a consequence of the desk scans." n46 This calls into question the bias on the part of the Study team to rely on pre-determined methods.

. Each of the five desk scans, which are supposed to be the foundation of the Study, was lacking in at least one of three main elements; survey of current methods and synthesis of state of the art, identification of data needs and data availability, and synthesis of past results. "None of the desk scans fully provides all three of these elements." n47

. Inadequate time to complete needed evaluation and development of appropriate methods and data. "The constrained schedule imposed by the congressional study charge may have precluded a more systematic approach to evaluation and selection of methods." n48

In summary, the FHWA should not complete the current truck size and weight Study, and Congress should not consider, debate or adopt any changes whatsoever in federal truck size and weight laws, unless and until the DOT eliminates all known and inherent biases, implements major revisions in the approach and methodology, uses only statistically valid data, and adopts essential corrective actions that allow a thorough public review of all draft technical studies, reports and public comments. This Study will influence federal and state transportation policy, working conditions for truck drivers and law enforcement, national freight and intermodal investments, clean air and fuel economy goals, and the public health and safety of our families for decades to come. Because the flaws are so significant and the process lacks adequate transparency, at this point in time Advocates recommends that the Study be stopped until Congress and the public are assured that corrections have been made, a new unbiased contractor has been selected to manage the Study, and that the findings are unbiased, unimpeachable and unchallengeable.

Mr. Chairman, over the past year I have had the honor of being a member, appointed by Secretary of Transportation Ray LaHood, of the National Freight Advisory Committee (NFAC), n49 which was established to assist in the development of a national freight strategic plan and which is comprised of representatives from the trucking, shipping, aviation, rail, labor, elected officials, academia, ports, environmental and safety communities. The NFAC was charged with making policy recommendations to the Secretary of Transportation concerning freight movement to advance safe and efficient freight transportation through intermodal solutions. As part of our deliberations, we highlighted, as a high priority, the need for research of future forecasting that considers changes in demographics, buyer behavior, manufacturing practices, and other factors that could restructure current freight supply and demand patterns. The complexity of players and stakeholders, as well as the interdependencies involved in modern supply chains was also fundamental to our considerations. Of utmost importance was the projected steep increase in freight demands expected to take place by 2040. Additionally, we stressed the need for improvements in data collection. In fact, in our recommendations submitted to Secretary Foxx on June 12, 2014, we wrote, "The lack of sufficient funding and lack of access to industry raw or complete data has persistently undercut the timeliness and completeness of freight data as a basis for public and private sector decision-making." n50 In contrast to the efforts of the Advisory Committee, the DOT appears content with using data in its analyses of freight issues that ignore real world conditions. In addition, DOT has taken few steps to upgrade its data systems and tear down the silos within DOT that could result in significant improvements in the coordinated use of transportation data, particularly with regard to freight policy.

The DOT Reauthorization Bill, GROW AMERICA Act

The Department of Transportation (DOT) surface transportation reauthorization legislation, the GROW AMERICA Act, n51 introduced in the House as H.R. 4834, has a number of provisions related to motor carrier safety that Advocates supports including: Section 5102, Motor Carrier Operations Affecting Interstate Commerce, which clarifies the scope of out-of-service orders; Section 5104, High-Risk Carrier Reviews, which focuses enforcement on the highest risk motor carriers; and, Section 5302, Jurisdiction Over Brokers of Motor Carriers of Passengers, which extends certain aspects of the FMCSA's regulatory jurisdiction to brokers of carriers of passengers.

Advocates also supports Section 5506 which would allow the DOT Secretary to determine whether to issue regulations to govern non-motor carrier contractors that exercise operating control over motor carrier operations. To the extent that non-motor carriers exercise control over motor carrier operations, they should be regulated and subject to violations, fines and penalties for failure to adhere to safety regulations, especially since contractors may have little or no experience regarding commercial motor vehicle operations. However, the provision as written, only states that the Secretary "may" issue such regulations while Advocates believes that the Secretary "should" be required to issue regulations to clarify that contractors are subject to the same safety and regulatory requirements when exercising control over motor carrier operations.

I would like to focus my testimony on three important statutory changes that have been proposed by the U.S.DOT in the GROW AMERICA Act which Advocates opposes.

First, Advocates opposes amending 49 U.S.C. [Sec.] 31144(g)(1)(A) and (g)(1)(B) to delete the mandatory requirement that new entrant motor carriers receive an initial safety review within a reasonable period of time. Just two years ago, Congress established the requirement in Section 32102 of the MAP-21 law to mandate that safety reviews of new operators must be conducted within 12 months for new freight motor carriers and within 120 days for new passenger-carrying motor carriers or intercity bus companies. There is an important public safety rationale for this requirement. While new entrant carriers should be permitted to enter the industry, since their safety performance is unknown, they should be subject to a timely safety review so that unsafe motor carriers are not able to operate for extended periods of time without any safety review. The National Transportation Safety Board (NTSB) has expressed concerns with delays in new entrant safety audits for more than a decade. n52 The NTSB has raised this concern as recently as two years ago in a report of a crash which killed four people and injured 58 when it stated:

The report notes that new entrants need not demonstrate their capability to operate safely before they begin carrying passengers, but the safety check must occur within 18 months of the commencement of operations. In 18 months, however, a carrier with two 50-passenger buses running two trips a day could have carried more than 100 thousand passengers before having its first safety examination; and the motor carrier involved in this accident operated for 22 months before its first safety check.

The public would be appalled if airlines could carry passengers before demonstrating their ability to do so safely. Query why a motor carrier should be allowed to carry passengers before demonstrating its safety fitness. n53

In proposing to change the word "shall" to "may" in Section 5105 of the GROW AMERICA Act, New Entrant Safety Audits, DOT would make such initial safety reviews discretionary, rather than mandatory. Adopting the proposed change would mean that an initial safety review could be conducted at any time or not at all. Weakening the requirement that was just enacted into law two years ago is detrimental to highway safety, is not justified with factual arguments by DOT and should be rejected.

Second, Advocates opposes the changing of long-standing existing law, 49 U.S.C. [Sec.] 31136(a)(4), regarding the standard for safety regulations. Current law requires that, among other things, minimum safety regulations issued by the DOT shall ensure that "the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators." This has been the law since first enacted in the Motor Carrier Safety Act of 1984, n54 and it has a well-established meaning that has been interpreted by the courts. The DOT proposes to replace the words "deleterious effect" with "significantly adverse effect" which clearly appears to raise the legal bar on challenges to federal regulations that impact the physical and medical condition of drivers.

This change is specifically intended to bar the courtroom door to truck drivers and others who are concerned about the impact that federal regulations have on the physical and medical conditions of commercial drivers. It is not a technical amendment but one clearly aimed at making it significantly more difficult for concerns about driver working conditions to be raised in the context of federal regulations. We believe it is proposed in response to the well-founded claims raised in the HOS lawsuits that pointed out the deleterious effect of long work hours on drivers. If enacted into law, it will shield the federal regulations from challenges based on the medical evidence which shows that commercial drivers could be negatively affected, physically or medically by a proposed regulation. The result of the wording change will be to lower the effective level of protection afforded commercial drivers for physical and medical conditions under federal regulations since challenges under section 31136(a)(4) would be limited to only the most extreme situations. This does a disservice to truck drivers who have a difficult and physically demanding job in one of the most dangerous occupations, and it should be rejected by Congress.

Third, Section 5512, regarding Pre-Authority Safety Audits (PASA) of Mexican motor carriers, n55 proposes to eliminate the requirement, which has been in effect for more than a decade, that a percentage of the PASAs and other safety-related reviews for Mexican motor carriers that wish to operate in the United States must be conducted in Mexico at the headquarters or operations hub of the motor carrier. Safety reviews and compliance reviews need to be conducted at the motor carriers' headquarters so that in addition to reviewing the books and records of the motor carrier, federal safety inspectors can also inspect the carriers' maintenance facilities and the condition of available equipment. By permitting Mexican motor carriers to have safety reviews conducted at "any location" selected by the FMCSA, this may well mean that foreign motor carriers may not necessarily have on-site inspections or safety reviews conducted at the carrier's home-base facility as is done for U.S. domiciled motor carriers. While this may ease the burden on DOT inspectors, it may not adequately ensure that the safety and procedures of foreign motor carriers will be adequately reviewed and inspected. This is especially troublesome as the three-year cross-border pilot program of Mexican trucking operations in the U.S. nears its end and a decision about the opening of the southern border becomes more imminent. DOT has not provided any adequate justification for recommending this major change.

Finally, I would also like to state our firm opposition to any proposals which would dramatically overturn existing national freight policy by forcing states to allow 33 foot trailers resulting in longer and more dangerous double or tandem rigs exceeding 85 feet in length, or three trailers exceeding 115 feet in length. Longer trucks are inherently more dangerous to passenger cars. The sheer size of these longer trailers - which adds at least 10 feet to the length of current double or tandem rigs - has far reaching and significant implications for the safe use of highways, bridges and ramps. This change could also open the door to triple-trailer trucks using three 33 foot trailers, which would be well over 115 feet long, compared to the average length of a family car, which is only about 16 feet long. These excessively long trailers threaten motorists sharing the road with trucks due to the "crack the whip" effect, in which small changes in steering by the tractor are amplified and cause large swaying effects (side-to-side motion) in the last trailer behind the truck cab. Longer trailers will also result in more off-tracking, in which the rear trailers cross into adjacent lanes and interfere with oncoming traffic as well as traffic headed in the same direction of travel. They can also swing into opposing lanes on curves and when making right-angle turns. Moreover, bigger trucks never result in fewer trucks despite industry's claims. Over three decades of research and real world experience show that allowing bigger, heavier trucks always results in more trucks on the road. Currently 39 states (AL, AK, AR, CA, CO, CT, DE, GA, HI, IL, KS, KY, LA, ME, MD, MI, MN, MS, MO, NE, NH, NJ, NM, NY, NC, ND, OH, OK, PA, RI, SC, SD, TN, TX, VT, VA, WA, WV, WI) do not allow these longer trailers and they should not be forced to pay for expensive, wasteful infrastructure rebuilding to accommodate these oversized rigs on Interstate and freeway on- and off-ramps. Furthermore, industry-funded research which is being used to support increasing the size of trailers is neither objective nor unbiased. There have been no independent, peer-reviewed research and studies conducted on the operational and safety issues associated with the use of 33 foot trailers. Congress would never consider allowing a new drug on the market for public use solely based on one industry-sponsored study. Neither should the motoring public be used as human test subjects to conduct this research on longer trucks. We need look no further to see the destruction that can result in crashes involving current double-trailer trucks than the April 11, 2014, crash in Orland, California, when a Federal Express double-trailer combination truck crashed into a Silverado Stages motorcoach carrying 48 passengers, mostly high school students traveling to visit a college; the crash injured dozens and killed ten people including five teenagers. n56 We strongly urge you to oppose any increases to federal truck length policy. It is unsafe, not supported by data and unacceptable to the public.

Mr. Chairman, the Senate Committee on Commerce, Science and Transportation led by this Subcommittee has drafted and enacted some of the most significant lifesaving motor carrier laws that are protecting motorists and commercial drivers from death and injury. The FMCSA reauthorization provisions adopted in MAP-21 under the Subcommittee leadership of the late Senator Frank Lautenberg resulted in advancing overdue and needed reforms and improvements in truck and bus oversight and enforcement. With truck crash deaths and injuries climbing these past few years, it is critical to continue this legacy and address the unfinished truck safety agenda.

We look forward to the opportunity of working with Members of this Subcommittee to meet the challenges of enacting commonsense and cost-effective truck safety measures in the MAP-21 reauthorization bill. This concludes my testimony and I am prepared to answer any questions the Subcommittee Members may have.

n1 Traffic Safety Facts 2012 Data: Large Trucks, DOT HS 811 868, NHTSA (May, 2014).

n2 NHTSA Traffic Safety Facts, Large Truck fact sheets 2003 through 2012.

n3 Id.

n4 Id.

n5 Traffic Safety Facts 2012 Data: Large Trucks, op cit.

n6 2014 Pocket Guide to large Truck and Bus Statistics, FMCSA (May 2014).

n7 National Census of Fatal Occupational Injuries in 2012 (Preliminary Results), USDL-13-1699, Bureau of Labor Statistics, (Aug. 22, 2013).

n8 Traffic Safety Facts 2012, DOT HS 812 032, NHTSA (2014).

n9 Census of Fatal Occupational Injuries Charts, 1992-2012 (revised data), available from http://www.bls.gov/iif/oshcfoi1.htm.

n10 Census of Fatal Occupational Injuries Charts, 1992-2012 (revised data)

n11 29 United States Code [Sec.] 213(b)(1).

n12 Regulatory Impact Analysis and Small Business Analysis for Hours of Service Options, FMCSA, Dec. 2002.

n13 Hours of Service of Drivers; Driver Rest and Sleep for Safe Operations, Final Rule, 68 FR 22456 (Apr. 28, 2003).

n14 Hours of Service of Drivers, NPRM (2010 NPRM), FMCSA, 75 FR 82170 (Dec. 29, 2010), citing Dinges, D.F. & Maislin, G., ''Truck Driver Fatigue Management Survey,'' FMCSA (May 2006), FMCSA-2004-19608-3968.

n15 Id.

n16 2010 NPRM, 75 FR 82175 (citations omitted). The FMCSA NPRM went on to state that the Virginia Tech Transportation Institute (VTTI) naturalistic driving study of CMV drivers operating under the 2003 rule, measured sleep averaged 6.15 to 6.28 hours (the average includes both work days and days off); the average on work days was 5.6 hours. See Hanowski, R.J., Hickman, J., Fumero, M.C., Olson, R.L. & Dingus, T.A., ''The Sleep of Commercial Vehicle Drivers Under the 2003 Hours of- Service Regulations,'' Accident, Analysis and Prevention, Vol. 39, No. 6, November 2007, pp. 1140-1145. FMCSA-2004-19608-3977.

n17 2010 NPRM, 75 FR 82176 ("In the Virginia Tech Transportation Institute (VTTI) naturalistic driving study of CMV drivers operating under the 2003 rule, measured sleep averaged 6.15 to 6.28 hours (the average includes both work days and days off); the average on work days was 5.6 hours." Citing Hanowski et al.).

n18 "Unhealthy Sleep-Related Behaviors - 12 States, 2009," Centers for Disease Control and Prevention, MMWR vol.60/No.8, p. 236 (March 4, 2011); Adults who reported obtaining less than an average of 7 hours of sleep per 24-hour period also showed a 39 percent increase in the likelihood that they would unintentionally fall asleep during the day at least once in the prior 30 days compared to adults who obtained more than an average of 7 hours of sleep.

n19 Hours of Service of Drivers, Final Rule, FMCSA, 76 FR 81134; 81135. (2011 Final Rule).

n20 2011 Final Rule, 76 FR 81169.

n21 Hours of Service Rule, Regulatory Impact Analysis, FMCSA, (Dec., 2011).

n22 2014 Pocket Guide to large Truck and Bus Statistics, FMCSA (May, 2014).

n23 2011 NPRM, 75 FR 82176.

n24 Field Study on the Efficacy of the New Restart Provision for Hours of Service, FMCSA (Jan., 2014).

n25 Transportation and Housing and Urban Development, and Related Agencies Appropriations Bill, 2015, S. 2438.

n26 Section 133 would temporarily suspend enforcement of the hours of service regulation related to the restart provisions that went into effect on July 1, 2013 and directs the Secretary to conduct a study of the operational, safety, health and fatigue aspects of the restart before and after July 1, 2013. S. Rep. 113-182 (June 5, 2014).

n27 Memo Re: Increasing the legal weight for trucks in the U.S., Lake Research Partners (May 7, 2013), available at http://www.trucksafety.org/images/sts2013/sts2013-lr-memo-tsc.pdf.

n28 Section 32801, Pub. L. 112-141 (Jul. 6, 2012).

n29 Study of Impacts Caused by Exempting the Maine Turnpike and the New Hampshire Turnpike from Federal Truck Weight Limits, June 2004; Northern Minnesota / Northwestern Wisconsin Regional Freight Plan, Nov. 2009; I-15 Corridor System Master Plan Freight: Trucks, June 2011; I-70 Dedicated Truck Lanes Feasibility Study Phase 2 Report, High Productivity Vehicle (HPV) Scenario Guidance 2011.

n30 The five subject matter areas consist of: Highway Safety and Truck Crash, Bridge Structure, Pavement, Modal Shift, Enforcement and Compliance.

n31 Review of U.S. Department of Transportation Truck Size and Weight Study, First Report: Review of Desk Scans (NAS Report), National Academy of Sciences, Transportation Research Board (March 31, 2014).

n32 NAS Report, pp. 35-36.

n33 Comprehensive Truck Size and Weight Study (2000 DOT Study), FHWA-PL-00-029, vol. III, p. VIII-5, U.S. Department of Transportation (August, 2000).

n34 NAS Report, p. 33.

n35 An Analysis of Truck Size and Weight: Phase I - Safety, Multimodal Transportation & Infrastructure Consortium (Nov. 21, 2013).

n36 "Bigger, Heavier Trucks Just Means More Trucks That Are Bigger and Heavier," Advocates for Highway and Auto Safety (Dec. 2013).

n37 Freight Facts and Figures 2011, p. 32, Table 3-7, FHWA Office of Freight Management and Operations, FHWA-FOP-12-002 (Nov. 2011).

n38 Freight Facts and Figures 2012, p. 9, Table 2-1, FHWA Office of Freight Management and Operations, FHWA-FOP-13-001 (Nov. 2012).

n39 2000 DOT Study, vol. III, p. VIII-6.

n40 NAS Report, p. 11.

n41 Id.

n42 Id.

n43 Id., p. 12.

n44 Id.

n45 Id., p. 2.

n46 Id., p. 1.

n47 Id., pp. 1-2.

n48 Id., p. 1.

n49 Notice of Establishment of National Freight Advisory Committee (NFAC or Committee) and Solicitation of Nominations for Membership, 78 FR 11727 (Feb. 19, 2013).

n50 Recommendations to U.S. Department of Transportation for the Development of the National Freight Strategic Plan, NFAC, p. 15 (June 12, 2014).

n51 Generating Renewal, Opportunity, and Work with Accelerated Mobility, Efficiency, and Rebuilding of Infrastructure and Communities throughout America Act (GROW AMERICA Act), DOT proposed reauthorization legislation, available at http://www.dot.gov/sites/dot.gov/files/docs/DOT_surface_reauth-FINAL.pdf.

n52 Highway Accident Report: Collision of a Greyhound Lines, Inc. Motorcoach and Delcar Trucking Truck Tractor-Semitrailer Loraine, TexasJune 9, 2002, NTSB Report HAR-03/01, p. 37, "The Safety Board concludes that by conducting safety audits up to 18 months after carriers begin operation, the FMCSA potentially allows unsafe carriers to operate without oversight and without the benefit of the educational and technical assistance that the FMCSA provides during the safety audit."

n53 Accident Report: Motorcoach Roadway Departure and Overturn on Interstate 95 Near Doswell, Virginia, May 31, 2011, NTSB Report HAR-12/02.

n54 Motor Carrier Safety Act of 1984 (MCSA), Pub. L 98-554 (1984).

n55 Audits and compliance investigations of Mexico-domiciled motor carrier.

n56 48 People Involved in Bus and FedEx Truck Crash on Interstate 5, CBS SF, Mercer, B., Apr. 11 2014, http://sanfrancisco.cbslocal.com/2014/04/11/48-people-involved-in-bus-and-fedex-truck-crash-on-interstate-5-1-still-missing/.

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