[Senate Hearing 114-457]
[From the U.S. Government Publishing Office]
S. Hrg. 114-457
NOMINATION OF HON. T.F. SCOTT DARLING III,
TO BE ADMINISTRATOR, FEDERAL MOTOR
CARRIER SAFETY ADMINISTRATION,
U.S. DEPARTMENT OF TRANSPORTATION
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
JANUARY 20, 2016
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida, Ranking
ROY BLUNT, Missouri MARIA CANTWELL, Washington
MARCO RUBIO, Florida CLAIRE McCASKILL, Missouri
KELLY AYOTTE, New Hampshire AMY KLOBUCHAR, Minnesota
TED CRUZ, Texas RICHARD BLUMENTHAL, Connecticut
DEB FISCHER, Nebraska BRIAN SCHATZ, Hawaii
JERRY MORAN, Kansas EDWARD MARKEY, Massachusetts
DAN SULLIVAN, Alaska CORY BOOKER, New Jersey
RON JOHNSON, Wisconsin TOM UDALL, New Mexico
DEAN HELLER, Nevada JOE MANCHIN III, West Virginia
CORY GARDNER, Colorado GARY PETERS, Michigan
STEVE DAINES, Montana
Nick Rossi, Staff Director
Adrian Arnakis Deputy Staff Director
Rebecca Seidel, General Counsel
Jason Van Beek, Deputy General Counsel
Kim Lipsky, Democratic Staff Director
Chris Day, Democratic Deputy Staff Director
Clint Odom, Democratic General Counsel and Policy Director
C O N T E N T S
----------
Page
Hearing held on January 20, 2016................................. 1
Statement of Senator Fischer..................................... 1
Statement of Senator Booker...................................... 3
Statement of Senator Markey...................................... 4
Statement of Senator Nelson...................................... 5
Statement of Senator Thune....................................... 18
Statement of Senator Blunt....................................... 20
Statement of Senator Daines...................................... 21
Statement of Senator Klobuchar................................... 22
Witnesses
Hon. T.F. Scott Darling III, Acting Administrator, Federal Motor
Carrier Safety Administration, U.S. Department of
Transportation................................................. 5
Prepared statement........................................... 7
Biographical information..................................... 8
Appendix
Response to written questions submitted to Hon. T.F. Scott
Darling III by:
Hon. John Thune.............................................. 25
Hon. Deb Fischer............................................. 25
Hon. Steve Daines............................................ 28
Hon Maria Cantwell........................................... 28
Hon Richard Blumenthal....................................... 29
NOMINATION OF
HON. T.F. SCOTT DARLING III,.
TO BE ADMINISTRATOR, FEDERAL MOTOR
CARRIER SAFETY ADMINISTRATION
U.S. DEPARTMENT OF TRANSPORTATION
----------
WEDNESDAY, JANUARY 20, 2016
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 10:31 a.m. in
room SR-253, Russell Senate Office Building, Hon. Deb Fischer,
presiding.
Present: Senators Fischer [presiding], Thune, Blunt,
Gardner, Daines, Booker, Nelson, Klobuchar, Blumenthal, and
Markey.
OPENING STATEMENT OF HON. DEB FISCHER,
U.S. SENATOR FROM NEBRASKA
Senator Fischer. Good morning. I want to welcome everyone
to today's Senate Commerce, Science, and Transportation
Committee hearing. It is an honor to chair this committee's
first hearing of the new year. I would like to thank Chairman
Thune and the members of the Commerce Committee for this
opportunity.
The purpose of today's hearing is to consider the
nomination of Mr. T.F. Scott Darling III, to serve as
Administrator of the Federal Motor Carrier Safety
Administration. After serving as the FMCSA's Chief Counsel for
3 years, Mr. Darling was nominated for this position by
President Obama on August 5, 2015.
Mr. Darling is from Boston, where he earned his law degree
from Suffolk University and worked at the Massachusetts Bay
Transportation Authority.
Congress established the FMCSA in 2000. As I have stated
previously, the FMCSA is an important agency within the
Department of Transportation tasked with a critical mission of
ensuring the safety of commercial vehicles on our Nation's
highways. Unfortunately, some of FMCSA's actions over the past
several years have challenged our shared goal of enhancing
highway safety.
In 2014, the GAO investigated the methodology behind
FMCSA's Compliance, Safety, and Accountability program. The GAO
found that inaccurate CSA scores, which are publicly available
online, have cost companies contracts and raised insurance
rates. All of this has occurred without a clear correlation to
increasing highway safety.
For example, as I previously mentioned before this
committee, a bridge in Ohio collapsed onto a commercial truck
in 2014. Under the CSA program, this event negatively affected
the carrier's safety score. Yet it is clear that this incident
was not the fault of the commercial driver.
When confronted with these findings, the FMCSA completely
disregarded the GAO's recommendations. To address the flaws in
CSA implementation, major stakeholders, including law
enforcement agencies, requested that the FMCSA remove CSA
scores from public view.
As Chairman of the Surface Transportation Subcommittee, I
was pleased to play a strong role in drafting, negotiating, and
supporting the final highway bill that the Senate passed in
December, known as the FAST Act. I worked closely with this
committee to include key reforms to the FMCSA's regulatory
process in the FAST Act. These reforms ensure the agency will
conduct a more robust cost-benefit analysis, review outdated
guidance, and encourage more transparency and public
participation in the rulemaking process. I am eager to see
these reforms implemented to increase confidence in the FMCSA's
rulemaking process moving forward.
In addition, the FAST Act includes a pilot program that I
advocated for. This program offers our Nation's veterans the
opportunity to begin a career as a professional commercial
driver at an early age. I firmly believe this common sense
program can help begin addressing our Nation's severe driver
shortage.
At the same time, the pilot program will also provide more
career opportunities for veterans who already hold a commercial
driver's license as a result of their time in the military.
The highway bill also included provisions to address flaws
in the CSA program. It does so by requiring the FMCSA to remove
inaccurate safety scores for commercial carriers, address and
certify that the program's methodology is sound, and provide
carriers with options to appeal crash-related data. The CSA
program reforms will help address at-fault crashes that are
inaccurately assigned to carriers.
I want to commend the FMCSA for immediately taking the
flawed CSA scores down from public view as soon as the
President signed the FAST Act into law. Thank you.
Just this past week, the FMCSA issued a Notice of Proposed
Rulemaking for its safety fitness determination rule, or the
FSD rule, which will change the way carriers are rated for
operating. Previously, the FMCSA divided carriers into three
tiers, satisfactory, conditional, and unsatisfactory. Under the
FSD rule, the FMCSA will now designate carriers as either fit
or unfit to operate by utilizing inspections, crash reporting
data, and investigation results. This will help increase
inspections and the enforcement of safety regulations.
Some, however, have expressed concerns regarding the
FMCSA's use of potentially flawed CSA data as part of the
carrier safety fitness determination methodology. Certain
stakeholders have argued inaccurate data could lead to rating
unfit carriers as qualified to operate, or vice versa.
I look forward to hearing about how the FMCSA will address
these concerns today with that FSD proposed rule.
Again, thank you, Mr. Darling, for being here today.
And I would now like to invite Senator Booker, who is
serving as today's Ranking Member, to offer his opening
remarks.
STATEMENT OF HON. CORY BOOKER,
U.S. SENATOR FROM NEW JERSEY
Senator Booker. Thank you, Chairman Fischer.
As I say behind Senator Fischer's back often, she is a
great Senator who stands her ground, but that does not mean
that she does not work hard to find common ground. I am
grateful that she is holding this important hearing and that
she has found great ways for us to move things forward through
this committee.
Mr. Darling, I want to congratulate you on your nomination.
I just know that this is not easy. You have chosen a life of
public service. You put yourself forward before your peers and
before the U.S. Senate and have committed yourself to what is
very hard work.
I have a focus, if not an area of serious concern, and that
is trucking. Trucking I know is critical to the movement of
goods and services across the country, and it is vital to our
economy. Trucking supports really good jobs in my state and
those of my colleagues, but we must strive to ensure that goods
are moved as safely as absolutely possible.
For most truck driving companies and most truck drivers,
safety is their highest priority. We have many, many good,
reputable companies that focus on that and have made
innovations in public safety.
That being said, truck and bus safety continues to be a
very serious problem. The northeast quarter and my state of New
Jersey, in particular, is home to one of the most heavily
traveled stretches of highway in the country. We are the most
densely populated state in America and have some of the most
congested roads.
Truck safety on our roads came to national spotlight in
2014 when a high-profile collision occurred on the turnpike
killing one person and severely injuring others. The truck was
traveling 20 mph over the speed limit and the driver was very
close to hitting his daily hours of service limit.
According to the National Transportation Safety Board,
truck driver fatigue was the probable cause of the accident as
the driver had been up all night driving from his Georgia
residence to his Delaware workplace, a trip of about 12 hours.
This is just one example, frankly, of thousands of examples
of crashes that happen every year. Annually, nearly 4,000
people are killed in truck crashes in the United States of
America. Over 100,000 are injured, some of them incredibly
seriously.
From 2009 to 2012, truck crashes actually increased in the
United States of America by 40 percent, and truck crash
fatalities increased by 16 percent. This is carnage on our
highways. This is absolutely unacceptable.
This cannot simply be the cost of doing business. There are
reasonable steps we can take, I believe, to immediately reverse
this trend.
For example, there is no place on our roads for tired truck
drivers. That is why hours of service rules to address fatigue
are actually very important. After years of study and data
collection, the DOT issued a rule that balanced vital safety
objectives with the needs of the trucking industry. However, no
sooner had the rule been implemented that an appropriations
rider was added to the 2015 appropriations bill that stopped
the enforcement of some of the most important safety
requirements until the department completes a study.
Another rider in the 2016 Omnibus bill further limited the
Department of Transportation from implementing its hours of
service rule.
I, obviously, fought hard to stop those provisions and
believe it is critical that the department complete its study--
I will say that again--completes its study quickly so that the
rule can be fully enforced.
Another important issue is making sure that there is
sufficient insurance coverage for trucks so victims and local
taxpayers are not left to foot the bill when these accidents
occur. I have met with families who suffered as a result of
there not being enough insurance when it comes to covering all
of the costs and burdens that a family has to bear from an
accident that was no fault of their own.
When a catastrophic crash occurs, the cost of the crash can
far exceed minimum levels of insurance.
In a 2014 report to Congress, FMCSA stated that the levels
needed to be reevaluated. We must do that.
I want to thank, again, Chairman Fischer for calling this
hearing. And I look forward to hearing from you, Mr. Darling,
about how we can address these issues. Thank you.
Senator Fischer. Thank you, Senator Booker.
I would now like to recognize Senator Markey to introduce
our nominee today. Thank you.
STATEMENT OF HON. ED MARKEY,
U.S. SENATOR FROM MASSACHUSETTS
Senator Markey. Thank you, Madam Chair. Thank you for
having this hearing. We appreciate what Senator Booker and you
are doing here in filling this very important position in our
government and for giving me the opportunity to introduce our
witnesses from Boston, Massachusetts.
He is a proud Massachusetts native. He very much knows that
the Patriots are going to beat Denver on Sunday.
[Laughter.]
Senator Markey. And that is because he grew up in Chelsea
and Dorchester, went to West Wood High School, got his
bachelor's from Clark, got his law degree from Suffolk, got his
master's in public administration from Tufts. He is Boston and
Massachusetts to the core.
But he selected planning as his life's work, and he has
been doing that all the way back to these battles that we had
in Massachusetts in the early 1970s where there were plans for
highways to go through just about every single neighborhood
that we have in Boston and the adjoining suburbs. Mr. Darling
was part of the effort to make sure we rethought what we were
doing to our city. What we have today in Boston is this
beautiful place, and we changed course. Mr. Darling was a big
part of that, ensuring that we have a cleaner environment,
ensuring that we have better public transportation planning for
Greater Boston.
Then he came down to Washington to work at the Federal
Motor Carrier Safety Administration, first as its Chief Counsel
and then as its Acting Administrator.
So Administrator Darling is Boston, but he is also
transportation. If you Google that word, his picture comes up.
He has dedicated his life, more than 40 years, to working on
these issues. And it is my pleasure to introduce to the
Committee with my highest recommendation Mr. Darling and hope
that he is confirmed with a unanimous vote out of this
committee.
Welcome, Mr. Darling.
Senator Fischer. Thank you, Senator Markey.
With that, I would ask the Ranking Member of the Committee
if he has comments before we start your testimony.
STATEMENT OF HON. BILL NELSON,
U.S. SENATOR FROM FLORIDA
Senator Nelson. Thank you, Madam Chairman.
Just to echo Senator Booker's comments and to say that we
want you to get on and get completed with this study, so that
the excessive number of hours in an industry that is vital to
our economy will help improve the safety.
Thank you.
Senator Fischer. Thank you, Senator Nelson.
Welcome, Mr. Darling. With that, we will start your
testimony before this committee.
STATEMENT OF HON. T.F. SCOTT DARLING III, ACTING
ADMINISTRATOR, FEDERAL MOTOR CARRIER SAFETY
ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION
Mr. Darling. Thank you, Chairman Fischer. Good morning,
Chairman Fischer and Ranking Member Booker, and members of the
Committee. I also thank Senator Markey for introducing me.
It is an honor to be here as the nominee for the
Administrator of the Federal Motor Carrier Safety
Administration. I would like to thank President Obama for
nominating me and Secretary Foxx for supporting me. I thank the
Committee for its leadership on transportation issues facing
FMCSA and the Nation.
Additionally, I thank my wife for her love and support.
I was born in Chelsea, Massachusetts, and raised in Boston
by my parents, Tommy and Sandy Darling. I miss them every day.
I am certain that they would be beside themselves with joy to
be here today.
I have devoted my career to public service and
transportation. Since beginning at FMCSA as Chief Counsel, I
have been inspired by the 1,100 people at the agency and their
devotion to our safety mission to save lives by preventing
accidents involving large trucks and buses. It is not easy
work.
FMCSA oversees 4 million active commercial driver's license
holders, 12,000 bus companies, and 500,000 trucking companies.
Since FMCSA was established 15 years ago, the numbers of lives
lost in commercial motor vehicle-related crashes has decreased
26 percent. That is progress, but still more than 4,000 people
die each year in large truck and bus crashes. This is far too
many, and we are always looking to drive that number to zero.
We also know that safe trucking moves our economy, and safe
bus operations move our people. We strive to work smarter and
more efficiently without losing sight of our principles.
FMCSA works to ensure that carriers and drivers entering
the industry meet stringent safety requirements. We then
require them to maintain high safety standards in their daily
operations. We focus our resources on identifying high-risk
carriers and drivers, and help them to improve or remove them
from the road. We cannot do this alone.
I have seen firsthand the impact of partnerships. Our
grants program, for example, funds almost 14,000 state
inspectors. They conduct about 3.5 million roadside inspections
each year.
We perform at our best when we are working with our
stakeholders. They are truly our force-multiplier.
If confirmed, I will lead an effort this year to broaden
and strengthen our partnerships that build on our achievements.
Last year, we conducted a negotiated rulemaking with our
stakeholders on entry-level driver training. Together, we
reached consensus on standards to make sure entry-level
commercial drivers get the training they need before getting
behind the wheel of a truck or bus.
Last month, we published the final rule on electronic
logging devices. It promises to save $1 billion per year in
paperwork costs and improve hours of service compliance.
Also last year, we launched our Unified Registration System
that featured an online smart form. URS will also be an
effective tool to detect unsafe carriers from the vast majority
of those who operate safely.
This week, we announced a proposed safety fitness
determination rule that will more quickly identify high-risk
carriers.
If confirmed, I look forward to leading FMCSA's work on its
busy agenda to advanced highway safety.
We are working quickly to implement the FAST Act. Within
minutes of its passage, we made the changes to the CSA public
website. We also adjusted our grant allocation formula and
reestablished full funding to two states. We are now working to
develop new programs and procedures, create working groups, and
conduct research.
For example, we are streamlining our grants program to give
states increased flexibility, engaging our stakeholders on an
incentive program for carriers to adopt cutting-edge safety
technologies and practices, and working with the National
Academies of Science to study our Compliance Safety
Accountability program.
We are also embarking on opportunities for our veterans to
embark on new careers in transportation. This is special to me
because both of my parents served in the military. Our waiver
program for veterans to obtain commercial driver's licenses is
now FMCSA's way of thanking those who served, and in a small
way, for me to pay tribute for what military service did for my
family.
Ten thousand veterans already utilize our waiver program,
and that number continues to grow.
Thank you to this committee for giving me this opportunity
to be here. I look forward to answering any questions.
[The prepared statement and biographical information of Mr.
Darling follow:]
Prepared Statement of Hon. T.F. Scott Darling III, Acting
Administrator, Federal Motor Carrier Safety Administration
Chairman Thune, Ranking Member Nelson, and Members of the
Committee, it is an honor to appear before you as the nominee for
Administrator of the Federal Motor Carrier Safety Administration
(FMCSA). I would like to thank President Obama for selecting me and
Secretary Foxx for supporting me.
I'd also like to thank the Committee for its leadership on
transportation issues facing FMCSA and the Nation.
I would also like to thank my wife, Alyson. Without her support, I
would not be sitting here today. My wife comes from a long line of
hardy Nebraskans and proud Cornhuskers. Her father was a graduate of
the University of Nebraska, Lincoln and its law school.
I was born in Chelsea, Massachusetts and raised in Boston. I have
devoted my career to public service, and transportation is my passion.
Since beginning at FMCSA in 2012 as Chief Counsel and now as Acting
Administrator, I have seen over and over again the impact that our
1,100 person Agency has on the safety of the traveling public.
I am humbled by their devotion to our safety mission, and the
incredible efforts of everyone in the Agency to advance highway safety.
It is not easy work.
FMCSA oversees over 4 million active commercial drivers' license
holders, more than 12,000 bus companies and 500,000 motor carriers,
including trucking companies, household goods movers, and hazardous
materials carriers.
Since FMCSA was established 15 years ago, the number of lives lost
in commercial motor vehicle-related crashes has decreased 26 percent.
These numbers represent progress, but the sad fact remains that more
than 4,000 people die each year in crashes with large truck and buses.
This is too many, and we at FMCSA are always looking for new and
innovative ways to drive this number toward zero.
We also know that safe trucking moves our economy and safe bus
operations move our people. As the economy grows, so too does the
number of carriers, drivers, and vehicle miles traveled.
As our just-in-time economy continues to pick up speed, we strive
to work smarter and more efficiently without ever losing sight of our
core principles.
FMCSA ensures those entering the industry meet stringent safety
requirements. We require carriers to maintain high safety standards in
their daily operations. We focus our enforcement and investigative
resources on identifying high-risk carriers and either help them
improve their performance or remove them from the road.
We also know we cannot do it alone.
I've seen firsthand the immediate impact of working closely with
partners. Our grant programs, for example, fund almost 14,000 Federal
and State inspectors to conduct about 3.5 million roadside inspections
every year to ensure commercial motor vehicle (CMV) drivers and their
vehicles are in compliance with safety regulations.
We do our best when we are working together with our stakeholders
in law enforcement, state and local governments, the safety advocacy
community, labor, and industry. They are truly our force multipliers.
If confirmed, I will lead FMCSA in broadening and strengthening our
partnerships with stakeholders to build on our 2015 achievements.
Last year we worked with a diverse set of stakeholders to make sure
that entry-level commercial drivers will have the skills they need
before getting behind the wheel of an 80 thousand pound truck. It paid
off: the negotiated rulemaking committee we assembled reached a
consensus on both commercial driver's license (CDL) training standards
and minimum qualifications for training schools.
Last month, we published the Final Rule on Electronic Logging
Devices, which promises two major benefits. First, replacing paper
logbooks will dramatically reduce paperwork, saving an estimated $1
billion per year. More importantly, the use of electronic logbooks will
improve compliance with hours of service rules and prevent an estimated
562 injuries and 26 deaths per year.
Also last month, we launched our Unified Registration System to
make it easier for first time motor carriers and other applicants to
register with us. We have consolidated ``legacy'' registration forms
into a simpler, online ``smart form.'' When fully implemented, the
system also will help us more readily detect unsafe carriers seeking to
evade enforcement.
If confirmed, I look forward to leading FMCSA as its Administrator
as we continue our work on a busy agenda this year.
We recently announced proposed Safety Fitness Determination rule
that will help us more quickly identify the high-risk carriers from the
vast majority that operate safely.
We got to work immediately on implementing the Fixing America's
Surface Transportation (FAST) Act. Within minutes of its passage on
December 4, we made changes to the public website of our Compliance,
Safety, Accountability program, or CSA. We also adjusted our grant
allocation formula and moved quickly to re-establish full funding to
two states.
We are now working to put in place dozens of FAST Act provisions to
establish new programs and procedures, create working groups, and
conduct research.
For example, we will streamline our grant programs to give States
increased flexibility to tailor funding to conditions on the ground. We
are taking comments from stakeholders and the public on an incentive
program to encourage carriers to adopt cutting edge safety technology
and practices. And the National Academy of Sciences study on the
effectiveness of our CSA program is scheduled to begin next month.
We are also doing our part to help our veterans. The FAST Act tasks
us with a series of steps to help veterans transition to careers in
transportation. The Act's provisions nicely complement our Military
Skills Test Waiver Program that makes it easier for those who drove
heavy military vehicles in the service of our armed forces to obtain
civilian CDLs. The waiver program has already helped more than 10,000
veterans, and that number continues to grow.
Thank you for giving me the opportunity to testify today.
I look forward to answering your questions.
______
a. biographical information
1. Name (Include any former names or nicknames used):
Thomas Frederick Scott Darling III
Other: T.F. Scott Darling III
Nickname: Scott
2. Position to which nominated: Administrator, Federal Motor
Carrier Safety Administration (FMCSA), U.S. Department of
Transportation (USDOT).
3. Date of Nomination: August 5, 2015.
4. Address (List current place of residence and office addresses):
Residence: Information not released to the public.
Office: 1200 New Jersey Avenue, SE West Building, 6th Floor,
Washington, DC 20590.
5. Date and Place of Birth: October 7, 1962; Chelsea,
Massachusetts.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).
Spouse: Alyson T. Cooke, retired.
7. List all college and graduate degrees. Provide year and school
attended.
Master of Public Policy, Tufts University (2008-2010)
Juris Doctorate, Suffolk University Law School (1989-1991)
Bachelor of Arts, Clark University (1980-1984)
8. List all post-undergraduate employment, and highlight all
management-level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.
Management/Related positions italicized below:
Federal Motor Carrier Safety Administration, Washington, DC
Chief Counsel (09/2012 to present).
AActing Administrator (08/2014-03/2015).
Massachusetts Bay Transportation Authority (MBTA), Boston, MA.
Deputy Chief of Staff/Assistant General Counsel (12/
2008-09/2012).
Environmental and Land Use Counsel/Privacy
Administrator (05/2005-
12/2008).
Conservation Law Foundation/CLF Ventures (6/1999-5/2005),
Boston, MA.
Director of Greater Boston Institute (06/2003-05/2005).
Staff Attorney/Community Organizer (06/1999-09/2001
full time and
9/2001-6/2003 part-time).
Freedom House, Roxbury, MA.
Executive Director (09/2001-06/2003 part-time)
9. Attach a copy of your resume. A copy is attached.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above, within the last ten years.
I was appointed by the Mayor of Somerville, Massachusetts, to the
Zoning Board of Appeals for the City of Somerville and served from 2005
to 2012.
I was appointed by the Mayor of Boston, Massachusetts, to the Board
of Examiners for the City of Boston and served from 1994 to 2012.
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution within the last ten years.
Treasurer, Board of Trustees, Smith Academy for Leadership
Public Charter School (2002-2011).
Co-Founder, Benjamin Banneker Public Charter School (1994-
2011).
Chairperson and Treasurer, Benjamin Banneker Public Charter
School (2003-2009).
Chair, Executive Committee, WGBH Community Advisory Board
(2007-2008).
Member, Board of Directors, W. M. Trotter Institute/University
of Massachusetts-Boston (2006-2008).
Member, Board of Directors, Charles River Watershed Association
(2005-2011).
Member, Board of Directors, St. James Educational Center (2004-
2007).
Member, Board of Directors, Freedom House, Inc. (2002-2005).
Chair, Quincy-Geneva Housing Corporation/New Visions Community
Development Corporation (2002-2004).
Member, Board of Trustees, Greeley Foundation (2001-2004)
Vice-Chair, Quincy-Geneva Housing Corporation/New Visions
Community Development Corporation (2001-2002).
Member, Board of Directors, Grove Hall Main Street Program
(2001-2002).
12. Please list each membership you have had during the past ten
years or currently hold with any civic, social, charitable,
educational, political, professional, fraternal, benevolent or
religious organization, private club, or other membership organization.
Include dates of membership and any positions you have held with any
organization. Please note whether any such club or organization
restricts membership on the basis of sex, race, color, religion,
national origin, age, or handicap.
Member, The Potomac Coalition, Washington, D.C. (2000-2012).
Member, American Institute of Certified Planners (2005-2009).
Member, Massachusetts Bar (1991 to present).
Member, District of Columbia Bar (1993 to present).
Member, United States Supreme Court Bar (2013 to present).
13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt.
In November 2008 and 2010, I was elected to the Ward 6 Democratic
Committee in Somerville, Massachusetts. I neither have any outstanding
campaign debt, nor have I been personally liable for any campaign debt.
I was appointed by the Mayor of Somerville, Massachusetts, to the
Zoning Board of Appeals for the City of Somerville and served from 2005
to 2012.
I was appointed by the Mayor of Boston, Massachusetts, to the Board
of Examiners for the City of Boston and served from 1994 to 2012.
14. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $500 or more for the past ten years. Also list all offices
you have held with, and services rendered to, a state or national
political party or election committee during the same period.
Offices Held: In November 2008 and 2010, I was elected to the Ward
6 Democratic Committee in Somerville, Massachusetts.
15. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements.
Recipient, Commonwealth of Massachusetts' Citation for
Outstanding Performance (2008).
Recipient, American Jurisprudence Award, Suffolk University Law
School (1991).
Recipient, Paul A. Gargano Scholarship, Suffolk University Law
School (1990-1991).
Recipient, Community Fellows Grant, Tufts University (2008-
2010).
16. Please list each book, article, column, or publication you have
authored, individually or with others. Also list any speeches that you
have given on topics relevant to the position for which you have been
nominated. Do not attach copies of these publications unless otherwise
instructed.
Publications
``We've Got an App for That! Putting a Powerful Tool in Hands
of Truck and Bus Inspectors''; U.S. DOT Fast Lane Blog; March
17, 2015.
``Truck Driving and Inspectors Championships Shine Spotlight on
Safety Skills''; U.S. DOT Fast Lane Blog; August 28, 2015.
Speeches
Morning Session Address--Regulatory Update. 2015 Commercial
Vehicle Safety Alliance (CVSA) Annual Conference & Exhibition
in Boise, Idaho; September 14, 2015.
17. Please identify each instance in which you have testified
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each
testimony.
March 25, 2015: I testified orally and in writing before the
United House of Representatives Committee on Appropriations
Subcommittee on Transportation, Housing and Urban Development,
and Related Agencies for the ``Budget Hearing--Federal Railroad
Administration, Pipeline and Hazardous Materials Safety
Administration and Federal Motor Carrier Safety
Administration.''
March 4, 2015: I testified orally and in writing before the
United States Senate Commerce Subcommittee on Surface
Transportation and Merchant Marine Infrastructure, Safety, and
Security hearing on ``Surface Transportation Reauthorization--
Oversight and Reform of the Federal Motor Carrier Safety
Administration.''
18. Given the current mission, major programs, and major
operational objectives of the department/agency to which you have been
nominated, what in your background or employment experience do you
believe affirmatively qualifies you for appointment to the position for
which you have been nominated, and why do you wish to serve in that
position?
I have spent most of my career in public service. I have been a
State and Federal government official, a staff attorney, an advocate,
and the executive director of a community service/civil rights
organization. These experiences have all involved complex and
multifaceted issues, diverse stakeholders, and extensive public
engagement. Currently, I am the Chief Counsel of the Federal Motor
Carrier Safety Administration (FMCSA). I served as Acting Administrator
of FMSCA from August 2014 until March 2015. Since September 2012, I
have held leadership positions within FMCSA, including Chief Counsel
and Acting Associate Administrator for Administration.
Prior to my almost three years at FMCSA, I was the Deputy Chief of
Staff/Assistant General Counsel of the Massachusetts Bay Transportation
Authority (MBTA). I assisted the General Manager in the safe and
efficient operations of the fourth largest rapid transit system in the
country. Primary responsibilities included overseeing MBTA transit
safety, operations, engineering and maintenance, and design and
construction departments. The MBTA has extensive land holdings at and
around transit stations, and I was responsible for oversight of the
real estate, environmental affairs, and planning departments.
Concurrently, as Assistant General Counsel, I provided legal advice to
the General Manager, General Counsel, and MBTA operating departments on
legal (contracts/environmental/labor relations) matters. I coordinated
compliance with Federal grants and managed several American Recovery
and Reinvestment Act (ARRA) projects.
As the MBTA Environmental and Land Use Counsel/Privacy
Administrator, I developed and implemented the Authority's
environmental management system, initiated and managed litigation, and
represented the MBTA on litigation matters with the U.S. Department of
Justice and Massachusetts Attorney General's Office. Successful actions
included $6 million in environmental cost recoveries from railroad
companies and litigation against a group that hacked into the ``Charlie
Ticket'' portion of the MBTA's automated fare collection system.
As the Conservation Law Foundation/CLF Ventures' Director of the
Greater Boston Institute, I formulated and shaped community planning
and outreach strategies with multiple stakeholders on transportation,
housing, and public space issues. I managed several projects, including
the Community Preservation Act Campaign for Housing and Historic
Preservation, the Campaign against an MBTA Fare Hike, and served as the
initial chairman of the Transit Rider Oversight Committee. I united
diverse communities and interests strengthening our advocacy with
local, State, and Federal agencies, boards, and departments.
My past community involvements include being the part-time
Executive Director of Freedom House (one of Boston's oldest human
services/civil rights organizations) and a co-founder of the Benjamin
Banneker Charter Public School in Cambridge, Massachusetts, and the
Smith Leadership Charter Public School (renamed--Helen Y. Davis
Leadership Academy Charter Public School.)
19. What do you believe are your responsibilities, if confirmed, to
ensure that the department/agency has proper management and accounting
controls, and what experience do you have in managing a large
organization?
The overarching responsibility for anyone entrusted to lead FMCSA
is improving motor carrier safety. I have been managing FMCSA for a
year, including as the Acting Administrator from August 2014 until
March 2015, and I am the agency's chief lawyer.
We at FMCSA must ensure that those entering the motor carrier
industry (i.e., carriers and drivers) are fit to provide a sufficient
level of safety and are not a danger to the travelling public or
themselves. This takes many forms, from effective management of the
leadership of FMCSA Program offices in DOT headquarters, to ensuring
all personnel have the tools and support to perform their jobs.
Everyone must understand and uniformly apply the Agency's policies and
guidance emanating from Washington.
In my experience running large and complex organizations, whether
FMCSA or the MBTA, you ensure everything being done within the agency
furthers the safety mission; this includes fiscal responsibility with
taxpayers' money. We need to efficiently and effectively manage our
budget. We must tirelessly pursue our safety mission, by using data
that allows the agency to take appropriate action against high-risk
carriers and conducting studies and initiatives to support rulemaking
efforts. If confirmed as Administrator, I will ensure congressional
mandates are fulfilled in a transparent way that allow Congress, the
motor carrier industry, safety advocates, law enforcement personnel,
and the general public to know what we are doing.
If confirmed, I will continue outreach efforts that allow industry,
advocacy groups, and the public to contribute meaningfully to our
safety mission and enforcement efforts. I will do my utmost to ensure
that FMCSA proposes and implements rulemaking and other initiatives
that are comprehensive, based on provable data, and are cost effective
and minimally intrusive. I will continue to work collaboratively with
the highly competent and motivated FMCSA career executives to find
savings and efficiency within the agency. We will continue to offer
regular and casual users of motor carriers the best information and
guidance possible.
20. What do you believe to be the top three challenges facing the
department/agency, and why?
The size and complexity of the motor carrier industry means FMCSA
focuses on core initiatives while concurrently working with industry,
safety advocates, and our state partners. All of our work based on data
collection, sound research principles, and practical application will
contribute to greater overall motor carrier safety.
I see the first of FMCSA's ``top three'' initiatives as increasing
truck and bus safety, period. As the economy improves, more goods are
being produced and people are again planning or taking trips. More
goods are moved by truck than any other mode. Travel by bus is also up
as a cost effective option, whether intercity travel on an array of
carriers or rentals by organizations, schools, and religious and
affinity groups. The downside is an increase in crashes and fatalities.
While lower than 15 years ago, that increase is still unacceptable.
We are leveraging technology to bring crashes and fatalities down.
The Electronic Logging Device (ELD) final rule will require ELD use for
more accurate, real-time, driver information. This rule is generally
supported by industry and will allow a driver, a company, and law
enforcement to see standardized data based on actual vehicle activity
and duty status. We are working with our state safety partners, for
example, through the Motor Carrier Safety Assistance Program (MSCAP).
MSCAP provides States with financial assistance to support safety
programs and encourage adoption and uniform enforcement of commercial
motor vehicle (CMV) safety rules. The New Entrant Safety Assurance
Program requires that before a Canadian or American company begins CMV
operations they register with FMCSA, meet a number of pre-operational
requirements, and are subject to a safety audit within 12 months and a
monitoring of its operations for 18 months. Mexican CMVs are also
subject to rigorous inspection including safety audits and border
inspections.
The second key initiative is improving FMCSA's Compliance, Safety,
and Accountability (CSA) program. CSA is the cornerstone of FMCSA's
oversight program to improve truck and bus safety, and helps target
limited resources towards identifying and stopping the highest risk
carriers operating on our Nation's roads.
For example, to determine if a motor carrier is fit to operate its
commercial motor vehicles, FMCSA currently conducts a safety fitness
determination (SFD) visit at the company's principal place of business.
Then, via notice-and-comment rulemaking, the Agency will propose
updating its SFD methodology to change the Federal Motor Carrier Safety
Regulations (FMCSRs) by adding decision criteria based on a carrier's
on-road performance in relation to the five Behavioral Analysis and
Safety Improvement Categories (BASICs),using either an investigation or
a combination of on-road safety data and investigation information.
Given the size of our Federal workforce and the limited resources of
our State enforcement partners, it is imperative that we maximize the
effectiveness of our enforcement program through an improved SFD
process.
The third key initiative is to improve the accuracy and collection
of data critical to informing rulemakings, programs, and enforcement
actions. Agency actions must connect to what's happening in the motor
carrier industry and on roads and highways. Our actions must be based
on data and accepted analytical practices. Robust data collection
enables greater attention to high risk carriers and helps to reduce
large truck and bus crashes, injuries, and fatalities. Collected data
on motor carriers is not only of interest to FMCSA--agency websites
received 70 million hits last year--but also truck and bus operators
and the general public. The general public wants to know if a bus is
safe or if a moving company has been fined or suspended as demonstrated
by the positive response to our ``Look Before You Book'' and ``Protect
Your Move'' campaigns. As an agency we see data and its uses
quantitatively and qualitatively.
b. potential conflicts of interest
1. Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients, or customers. Please include information related to retirement
accounts. None.
2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association or other organization during your appointment? If so,
please explain. None.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Transportation's
Designated Agency Ethics Official to identify any potential conflicts
of interest. Any potential conflicts of interest will be resolved in
accordance with the terms of an ethics agreement that I have entered
into with DOT's Designated Agency Ethics Official and that has been
provided to this Committee. I am not aware of any other potential
conflicts of interest.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Transportation's
Designated Agency Ethics Official to identify any potential conflicts
of interest. Any potential conflicts of interest will be resolved in
accordance with the terms of an ethics agreement that I have entered
into with DOT's Designated Agency Ethics Official and that has been
provided to this Committee. I am not aware of any other potential
conflicts of interest.
5. Describe any activity during the past ten years in which you
have been engaged for the purpose of directly or indirectly influencing
the passage, defeat, or modification of any legislation or affecting
the administration and execution of law or public policy.
During my time at the Department of Transportation, I have
testified before Congress on Federal budget and public policy matters
concerning the debate over surface reauthorization and the need for a
long-term transportation bill, such as the GROW AMERICA Act.
6. Explain how you will resolve any potential conflict of interest,
including any that may be disclosed by your responses to the above
items.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Transportation's
Designated Agency Ethics Official to identify any potential conflicts
of interest. Any potential conflicts of interest will be resolved in
accordance with the terms of an ethics agreement that I have entered
into with DOT's Designated Agency Ethics Official and that has been
provided to this Committee. I am not aware of any other potential
conflicts of interest.
c. legal matters
1. Have you ever been disciplined or cited for a breach of ethics,
professional misconduct, or retaliation by, or been the subject of a
complaint to, any court, administrative agency, the Office of Special
Counsel, professional association, disciplinary committee, or other
professional group? If yes:
a. Provide the name of agency, association, committee, or
group;
b. Provide the date the citation, disciplinary action,
complaint, or personnel action was issued or initiated;
c. Describe the citation, disciplinary action, complaint, or
personnel action;
d. Provide the results of the citation, disciplinary action,
complaint, or personnel action.
No.
2. Have you ever been investigated, arrested, charged, or held by
any Federal, State, or other law enforcement authority of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain. No.
3. Have you or any business or nonprofit of which you are or were
an officer ever been involved as a party in an administrative agency
proceeding, criminal proceeding, or civil litigation? If so, please
explain. No.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain. No.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain. No.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination. None.
d. relationship with committee
1. Will you ensure that your department/agency complies with
deadlines for information set by congressional committees? Yes.
2. Will you ensure that your department/agency does whatever it can
to protect congressional witnesses and whistle blowers from reprisal
for their testimony and disclosures? Yes.
3. Will you cooperate in providing the Committee with requested
witnesses, including technical experts and career employees, with
firsthand knowledge of matters of interest to the Committee? Yes.
4. Are you willing to appear and testify before any duly
constituted committee of the Congress on such occasions as you may be
reasonably requested to do so? Yes.
Resume of Thomas F. Scott Darling III
Professional Experience
U.S. Department of Transportation--Federal Motor Carrier Safety
Administration, Washington, D.C.
--Chief Counsel, 2012-Present
Oversee legal services and provide legal policy and direction to
all FMCSA Headquarters and field offices concerning all aspects of the
programs, functions, or activities for which FMCSA is responsible,
including, but not limited to:
In consultation with the Deputy Chief Counsel, advise the
Administrator on legal and public policy matters;
Through the General Law Division (MC-CCG), oversee legal
matters including Agency acquisitions activities; Agency
personnel and employment, civil rights, and ethics issues;
Through the Enforcement and Litigation Division (MC-CCE),
provide interpretation, administration, and enforcement of the
motor carrier safety and hazardous materials regulations,
including the prosecution and adjudication of violators;
Through the Regulatory Division (MC-CCR), provide guidance
on the legal sufficiency of existing and proposed Federal Motor
Carrier Safety Regulations;
Serve as legal advisor to the Chief Safety Officer/Assistant
Administrator on adjudicatory matters; and
Served an 8-month detail as Associate Administrator for
Administration that included overseeing the following offices:
Office of Acquisitions, Office of Human Resources, Office of
Emergency Preparedness and Security, Office of Management
Services, and the National Training Center.
--Acting Administrator, 2014-2015
Represented the Department and advised the Secretary on all matters
relating to the safe operation of commercial motor vehicles and
commercial passenger vehicles, the movement of hazardous materials, and
the coordination of the movement and safety of commercial motor and
passenger vehicles with other modes of transportation.
Determined and established FMCSA program policies,
objectives, and priorities, and evaluated accomplishment of
FMCSA missions;
Exercised overall direction, control and evaluation of
Headquarters and field organizations, program activities and
performance; and
Directed the development of and approved broad legislative,
budgetary, fiscal, and program proposals and plans.
Massachusetts Bay Transportation Authority (MBTA), Boston, MA
--Deputy Chief of Staff/Assistant General Counsel, 2008-2012
Assisted the General Manager with the implementation and management
of Capital and Operating programs, policies, and initiatives. Served in
this capacity for four different General Managers.
Oversaw activities associated with the Safety, Operations,
Material (Procurement), Engineering & Maintenance, and
Development (Real Estate, Environmental, Planning, and
Environmental), and Design and Construction Departments.
Reviewed and evaluated legal and labor relations issues and
matters on behalf of the General Manager
Coordinated American Recovery and Reinvestment Act (ARRA)
Projects
--Environmental and Land Use Counsel/Privacy Administrator, 2005-2008
Provided legal advice to the General Manager and the General
Counsel and various MBTA operating departments on environmental and
privacy issues.
Developed and implemented the Authority's Environmental
Management System
Initiated and managed litigation of environmental cost
recovery matters against major railroad companies that netted
$6 million for the Authority
Represented the Authority in various litigation matters with
the Massachusetts Attorney General's Office and the U.S.
Department of Justice
Initiated and managed litigation against a group that hacked
into the CharlieCard, the Authority's automated fare collection
system
Received Commonwealth of Massachusetts' Citation for
Outstanding Performance in 2008
Conservation Law Foundation/CLF Ventures, Boston, MA
--Director of Greater Boston Institute, 2003-2005
Provided strategic planning and initiative thinking to help
formulate and shape CLF's community planning and outreach agenda on
transportation, housing, and public spaces.
Managed the Community Preservation Act Campaign for Housing,
Open Space, and Historic Preservation
Oversaw the Campaign Against an MBTA Fare Hike and served as
the initial Chairman of the [Public Transit] Rider Oversight
Committee
Participated in various national and regional conferences
and convenes on Smart Growth
Represented the various community group, professional
associations, and not-for-profit organizations against local,
State, and Federal agencies, boards, and departments
Qualifications
Admitted to practice law in the following courts:
Massachusetts
District of Columbia
United States Supreme Court
Federal District Court of Massachusetts
U.S. Court of Appeals for the First Circuit
Notary Public (Massachusetts)
Registered Real Estate Broker (Massachusetts) (expired)
American Institute of Certified Planners (expired)
Education
Juris Doctor, Suffolk University Law School, Boston, MA
American Jurisprudence Award Recipient; Paul A.
Gargano Scholarship
Master of Public Policy, Tufts University, Medford, MA
Community Fellowship Grant
Bachelor of Arts, Clark University, Worcester, MA
Major--Government
Minor--Geography/Theatre Arts
Certificates:
International Comparative Law, USD Graduate Program,
Trinity College, Dublin, Ireland
LeadBoston Program, National Conference for
Communities and Justice
Emerging Leaders Program, UMass/Boston, Center for
Collaborative Leadership
Future Leaders Program, Greater Boston Chamber of
Commerce
Senator Fischer. Thank you, Mr. Darling. I will begin the
first round of questioning.
As you know, sir, we worked very hard here in the Senate
and in Congress to pass a bipartisan highway bill, the FAST
Act. In that bill, there are a number of regulatory reforms.
Could you update the Committee on the status of the FMCSA's
implementation of some of those reforms?
Mr. Darling. As I mentioned in my opening statement, within
hours of the FAST Act being enacted, we took down the CSA
scores, the alerts, and the percentiles. We did that right
away. We are now currently working with the National Academies
of Science to make sure that they can conduct a thorough study
of our CSA program.
In addition to that, we are working to put workgroups
together, one on the military pilot program for under 21-year-
old drivers. In addition to that, we are looking at all of our
rulemakings to make sure that we are getting the highest
benefit from rulemakings and doing those first. We are also
setting up a Web page to address petitions that we get for
rulemakings and making sure that we can very quickly respond to
those petitions in the most efficient manner. I can keep
talking.
Senator Fischer. I guess we put a lot of reforms in there
for you to work on, so I am happy to see that we are already
seeing some progress. I would ask you about a couple of them.
On the new procedures for the guidance documents, such as
the review and reissuance of past guidance documents every 5
years, have you gotten started on that at all? Have you begun
the process?
Mr. Darling. Yes, we have. We are now working on a plan to
figure out how to implement that. As soon as we do that, we
will start to put the documents up on the website, and then we
will continue to review them as established by the FAST Act.
Senator Fischer. Are you also working on providing a
summary of the petitions that are submitted to the agency, to
be able to get those published?
Mr. Darling. Yes. That will also be part of the Web site
when it goes up.
Senator Fischer. I would ask you a question, though, it
seems like you have been moving forward rather vigorously the
past several weeks to issue some rulemakings on the ELDs and
the SFD proposed rule. Why are you moving forward on that
rulemaking when we have already given you so much to do with
the passage of that bipartisan FAST Act? We really worked
together on that and worked very hard to find consensus so that
we could see some changes made.
Mr. Darling. Those two rules that you mentioned have been
in the works for 10 years. They were in the works and
production prior to me even showing up at FMCSA. As we went
through, we were at a stage where we got approval from the
Office of Management and Budget to move forward. The ELD rule
was a mandate, and we wanted to make sure we completed that
mandate.
Senator Fischer. As you continue to move forward on the
rulemaking and we look at the SFD rule that is coming out, it
is my understanding that it is going to include CSA-related
data. Is that correct?
Mr. Darling. The SFD rule does not include the two CSA data
points that the FAST Act does not allow us to use, prohibits us
from using, which are the alerts and the relative percentages.
The SFD is predicated on a fixed measure formula that carriers
will have to meet. It uses that information against the
carriers' information itself, not against other carriers. So
the carrier is actually measured against its own performance.
Senator Fischer. So the stakeholders should not really be
concerned, then, that data that has been deemed flawed by the
GAO is going to be used in any way in this new rulemaking? Are
you totally discounting that as a possibility, so we do not
have issues with that flawed data in the future?
Mr. Darling. The data that is being used is data that is
being collected against the carrier itself.
Senator Fischer. Is it through the CSA process, though,
that was deemed flawed by the GAO? Is it still going to be
collected that way, and used against the stakeholders?
Mr. Darling. The Safety Fitness Determination rule will use
11 inspections before a carrier is rated. The GAO said 20, but
they said this is just an illustration. We do not know what the
number is. But we are going to use 11, which will provide
carriers with enough information to make a Safety Fitness
Determination assessment for a carrier.
Senator Fischer. Will one of those 11 be that flawed data
from the CSA?
Mr. Darling. No.
Senator Fischer. Good to hear.
Mr. Darling. No.
Senator Fischer. Thank you.
I would recognize Senator Booker.
Senator Booker. Thank you very much, Chairman.
I want to apologize, Mr. Darling, at the outset. I have a
Homeland Security Committee meeting that I need to go to after
this. But I am very excited about your nomination. At least I
was until I heard that you were a Patriots fan.
[Laughter.]
Senator Booker. So I am going to try to overlook that stain
on your record.
Mr. Darling. Did I say that or did Senator Markey say that?
Senator Booker. That is true. You were accused. There has
not been due process before I try and convict you for that sin.
But just very quickly, you heard from my opening remarks my
concern about hours of service. Your agency spent a decade
working on an hours of service rule, literally soliciting
hundreds if not thousands of input from the whole spectrum of
people involved in trucking as well as researchers, analysts,
scientists, et cetera. It is critical to the safety on our
highways.
However, the appropriations bill included a rider that
allows truck drivers to work now more than 80 hours.
So just in that line, does this raise alarms for you? How
important is it that we get back to more reasonable work limits
as contemplated in your rule?
Mr. Darling. It does concern me. One of the things that the
hours of service was put in place to do is to look at providing
truck drivers with adequate opportunity to have rest. As I said
in my opening, safe trucking moves our economy and safe bus
operations move our people, but I really say loved ones,
because it is our loved ones who are on buses every day.
So we are looking for opportunities to make sure that
truckers and bus drivers are safe when they are on the road,
because it is not just them getting home to their families. It
is also my family getting home to be with me and Alyson.
Senator Booker. OK. Then in order to reinstate the rule,
the department has to send us a study that was mandated in the
appropriations bill. It is critical that we get that study as
soon as possible. So my question simply is, when can we expect
that study?
Mr. Darling. That study is currently under review by the
Office of the Secretary. We provided a draft study. I am very
proud of that study, because on the day that the 2015
Appropriations Act was enacted, I called all the stakeholders
and said that I need their help to do the study. They
participated and they helped us create one of the best studies,
I believe, on hours of service, especially one of the largest
naturalistic studies on hours of service.
That study is currently under review by the Office of the
Secretary. As soon as that review is completed, the study will
have to go to the department's Office of Inspector General, and
then the Inspector General has up to 60 days to provide a
review. And then after that, there is a determination of how to
send the report to Congress.
Senator Booker. Because I literally believe that lives are
at stake, do I have your commitment to take all possible
actions to expedite this study?
Mr. Darling. Yes, you have my commitment to do what I have
within my power to work with the Office of the Secretary to
move the study.
Senator Booker. OK. I look forward to talking with you
about the study soon and perhaps calling you after the game on
Sunday.
[Laughter.]
Mr. Darling. Call me during the game, if we are winning.
Senator Fischer. Thank you, Senator Booker.
Senator Booker. Thank you.
Senator Fischer. Senator Nelson?
Senator Nelson. Just a similar commitment from you, as we
discussed, to get that study out of the Secretary of
Transportation's Office and get it to the Inspector General and
to get it completed so that we can get to the much more
rational rule on the number of hours for truckers to use.
Mr. Darling. I will work with the Secretary's Office to
move the study.
Senator Nelson. Thank you, Madam Chairman.
Senator Fischer. Thank you, Senator Nelson.
We have been joined by the Chair of the Committee, so I
recognize the Chairman Thune.
STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
The Chairman. Thank you, Madam Chair.
Mr. Darling, welcome again to this committee, and thank you
for your willingness to serve at the DOT.
I just want to ask a couple quick questions. One has to do
with an issue that has been brought to my attention in my home
State.
But I am pleased to see that FMCSA has begun a phased-in
launch of the Unified Registration System, URS, which, once
fully implemented, will make it easier for carriers, freight
forwarders, and brokers to register online with one form with
the FMCSA. However, it is critical that the launch of URS be
done correctly to ensure that these benefits are actually
realized.
I have received some concerns, as I mentioned, with the
length of time the application process is taking, somewhere
between 1 and 3 hours, when the old process took less than 15
minutes. It is my understanding that some of the delay is due
to the fact that this is a new system, that the URS website has
been slow, and that the layout of the website is confusing.
The question is, what steps are the FMCSA taking to improve
the situation?
Mr. Darling. We are taking all the steps to have continuous
improvement on URS. I was the one who directed the staff to do
a phased-in approach. As you said earlier, it is important that
this launch of the Unified Registration System happens in a
systematic way to make sure that it is successful. I believe
that it has been successful.
We had webinars. Our call center has been helping
constituents get through the URS system.
One of the things you have to remember about the URS is
that it takes 16 forms and reduces it to one simple form--it
allows more accurate information for those who register to get
operating authority.
The Chairman. I have also heard that when help is needed on
questions that the FMCSA helpline is extremely busy, leaving
individuals on hold or seeking assistance for many hours. Has
the FMCSA noticed this trend? And if so, what steps are you
taking to fix it?
Mr. Darling. Yes, we have noticed that trend. One of the
things that I have done, having come from the transit world, is
we have a dashboard up now, which shows the wait periods for
each month. I have asked my staff to make sure that we stay
within reasonable time periods.
In addition to that, we will have a report card that will
come out that will identify all of the corrective actions that
we are making, to make sure that our call center is being
responsive to our constituents.
The Chairman. I know that this has been touched on already,
and I know it is an issue that Senator Fischer and others on
the Committee have a pretty keen interest in, but following the
enactment of the FAST Act, your agency did remove the scores
that compare motor carriers using flawed methodology, which is
something that, of course, was described in independent reports
from the GAO and DOT IG. So thank you for following the intent
of Congress in that regard and acting expeditiously on that
particular issue.
The question is, what are your planned next steps for
fixing the scores? Can you give sort of a timeline or schedule
of how you intend to continue to remedy this situation?
Mr. Darling. So the next step in this is to have the
National Academies of Science conduct a study of the CSA
program. We are in discussions with the National Academies now.
We have talked to them about the scope. We are now in the
process of procuring their services.
As soon as they finish that, we will then get the study up
and running. We have 18 months to do that. We will then provide
that study to the OIG, and then we will also work with the
Secretary's Office to provide recommendations to address the
findings in the report and also address some of the other
reports that are out there, especially the GAO report that was
in 2014.
The Chairman. I think everybody would appreciate your
continued attention to this. It is an issue that has created a
lot of angst.
Mr. Darling. Yes. You have my full attention.
The Chairman. Thank you.
Madam Chair, thank you.
Senator Fischer. Thank you, Senator Thune.
Senator Blunt?
STATEMENT OF HON. ROY BLUNT,
U.S. SENATOR FROM MISSOURI
Senator Blunt. Thank you, Chairman.
Mr. Darling, nice to see you here. I have about three
things here I want to cover pretty quickly.
One is on random drug testing rates. Under the previous
Chairman, there seemed to be a real reluctance to release and
respond to the numbers. As you know, motor carriers are
required to randomly test 50 percent of their drivers for drugs
each year. But if their violation rate falls below 1 percent
for 2 consecutive years, then that number can be moved to 25
percent.
The data in 2011 and 2012 was pretty slow in coming out.
While it turned out to be below 1 percent, FMCSA did not reduce
the requirement in 2015. You have announced that you will
reduce that requirement in 2016.
My question is, why was it handled differently, in your
view, for 2015 than it was for 2016, even though the data was
pretty clear both times?
Mr. Darling. The data in 2014 that we used to do the random
drug testing rate in 2015 was below 1 percent. When I talked to
the industry I said I did not know if that was an anomaly or
not, let us wait 1 more year, and if the rate continues to be
below 1 percent, we will lower the rate to 25 percent, which I
did. So they got my word and they got my action.
Senator Blunt. And you would expect that to continue to be
the way that you would look at those numbers, and you will
continue to evaluate the numbers as they are available to you?
Mr. Darling. If the rate goes back above 1 percent, as in
the Federal Register notice, the random drug testing rate will
go back to 50 percent.
Senator Blunt. But if it does not go back above 1 percent?
Mr. Darling. It stays at 25 percent.
Senator Blunt. Continuing on the topic of drug testing,
MAP-21 required FMCSA to create a clearinghouse for drug and
alcohol test results and for reported violations. This was to
ensure that violators would not evade detection by just going
from one job to another.
It is my understanding that the clearinghouse has been
created but does not report violations from past employers or
admissions misuse by employees. If the employee does not
disclose the identity of their previous employer, then the new
employer would not have anybody to contact.
Why would this clearinghouse not include past violations
that are specific to that driver?
Mr. Darling. Just to be clear, Senator Blunt, the
clearinghouse is still in the final rule development. We are
looking at all options to make sure that we have all the
fullest information in the clearinghouse. We will continue to
search to get information to make sure that we have a complete
record of each driver, drug and alcohol record of each driver.
Senator Blunt. So would it be your intention then to
include both the report of violations as well as drug tests at
the clearinghouse?
Mr. Darling. Yes.
Senator Blunt. All right.
And my last question, FMCSA was asked to do a causation
study for large truck accidents. It was petitioned to do that
in 2006 to begin rulemaking that would mandate heavier trucks
to have top speeds electronically limited to no more than 65
mph. That petition was granted in 2011. FMCSA stated the rule
would have minimal costs and would decrease fatalities, yet it
has delayed the publication of the rule 21 times.
What do you anticipate doing with that rule?
Mr. Darling. That is a joint rule with FMCSA and NHTSA.
NHTSA is on the lead on that. We are currently looking at
finalizing the notice of proposed rulemaking and processing
that now. I am hoping to have that out as soon as possible.
Senator Blunt. From your side of that, you are ready to do
your part in finalizing the rule?
Mr. Darling. We are working closely with NHTSA to work on
getting the rule finalized.
Senator Blunt. I guess what I am asking is, should I be
talking to NHTSA or are we going to see this rule in the very
near future?
Mr. Darling. In the near future. That is my understanding.
Senator Blunt. We will talk about this again, if we do not
see this rule pretty soon.
Mr. Darling. Thank you.
Senator Blunt. OK. Thank you, Mr. Darling.
Senator Fischer. Thank you, Senator Blunt.
Senator Daines?
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Thank you, Madam Chair.
Senator Gardner had to leave for a Foreign Relations
hearing, but to defend the Broncos' honor here on behalf of
Cory, I, too, join Senator Booker in this growing bipartisan
opposition to the Patriots, and I am certain that the Broncos
will warmly welcome the Patriots to Denver this weekend.
[Laughter.]
Senator Daines. Mr. Darling, in your testimony, you
highlight that the electronic log rule published last month
will increase compliance with hours of service regulations.
However, I have been hearing from some Montana truck drivers,
and we have a lot of pavement and concrete between the state
lines in our state, that this rigid rule will create some
unintended consequences.
In fact, I received this e-mail from a Montana truck driver
just recently. He said these electronic log books are dangerous
for public roads. Drivers will be forced to stop in unsafe
places, and will be racing the clock all day. He says I am
already seeing this. They are driving too fast in truck stops,
construction zones, and bad road conditions. They are trying to
make up time before their inflexible time clock runs out.
As Administrator, my question is, how will you ensure that
the regulations remain flexible enough so that truckers can
make real-time decisions based on current road conditions and
get home to their families without having to race the clock?
Mr. Darling. Senator Daines, I believe that the electronic
logging device rule is a safety rule. It will provide accurate
hours of service data to allow truckers to make sure that they
have opportunities for adequate rest in downtime. We are
working closely with our State partners to make sure how we go
about enforcing those rules. And truckers should not be using
their ELDs while driving. ELDs are designed to be almost
automatic and run on engine time.
Senator Daines. What I would hope for is that, again, it is
helpful to have that back-and-forth conversation around what
could be unintended consequences occurring there in trying to
achieve the outcome, which, of course, is safer highways.
Mr. Darling. I agree with you. One of the things that we
have in place is an implementation plan. The implementation
plan includes discussions with all stakeholders. So we will
continue to do that.
It is a 4-year implementation program. We will be engaging
the stakeholders all the way through the process, as we have
done through development of it.
As I said in my opening statement, this will be the year of
partners, because we cannot do this alone. And safe trucking,
again, moves our economy, and safe bus operations move our
loved ones.
Senator Daines. Thank you.
One of the provisions that I helped champion in the highway
bill was to review the FMCSA's Wireless Roadside Inspection,
the WRI project. I am concerned that WRI will likely lead to a
duplication of some of the existing State efforts, which would
be wasting Federal resources and perhaps creating something
where it does not fit proportionally to all states. We have had
success in Montana since 1998, along with more than 40 other
states.
How will you plan to work with States to ensure that these
new programs or these regulations are not duplicative or
obstructing some of the State initiatives?
Mr. Darling. Our work on WRI is looking at compatibility,
making sure that it is consistent all the way across the
country. As we look beyond compliance, one of the things that
WRI will allow us to do is to make sure that carriers are
getting credit for this wireless inspection system.
We want to continue to work with the partners to make sure
that what they have in place continues to work. So it is about
working together with our stakeholders to make sure that we are
being consistent all the way across the country.
Senator Daines. Thank you, Mr. Darling.
Senator Fischer. Thank you, Senator Daines.
Senator Klobuchar?
STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA
Senator Klobuchar. Thank you very much, Chairman Fischer.
Thank you very much, Mr. Darling.
Previous to the CSA system, freight brokers were generally
not held liable for accidents and damages motor carriers
incurred, as long as the motor carrier was authorized by FMCSA
to operate. Following the implementation of the CSA system and
the confusion it has caused between safety ratings and basic
data, freight brokers are being found liable for negligent
hiring.
In some cases, plaintiffs are alleging that freight brokers
should not only consider a carrier's overall safety record and
rating but also the detailed safety record of each carrier
before use.
Are you aware of this issue?
Mr. Darling. Senator Klobuchar, I believe that the safety
fitness rule Notice of Proposed Rulemaking will help freight
forwarders and brokers and shippers to understand carriers that
are either able to operate or unfit to operate, and it will be
clearly beneficial to them, this rule will.
My staff will also coordinate with your staff and the
Committee staff to make sure that you understand how the Safety
Fitness Determination rule will be helpful.
Senator Klobuchar. Do you know how long that is going to
take? There has just been a lot of confusion over a period of
time.
Mr. Darling. It is on view today in the Federal Register
and will be published tomorrow. There is going to be a 90-day
comment period, and we will work with the stakeholders in the
comment period. As soon as we figure out how many comments we
get, we will then start to work toward the final rule.
Senator Klobuchar. OK, we will be working with you on that
in the future. I just hope we can clarify it as soon as
possible.
Next is on the broker bond insurance increase. Way back
when Olympia Snowe was here on this committee, in the previous
transportation authorization bill--that would be MAP-21--we
worked to include legislation to increase the broker bond
insurance requirements for any entity seeking to obtain broker
or freight forwarder authority. Our legislation increased the
broker bond requirements to $75,000 from the original $10,000
level and established significant penalties for violations of
broker regulations, including unlimited liability for freight
charges for conducting brokerage activities without a license
or without a bond.
Is it your view that increasing the broker bond insurance
levels has helped to weed out bad actors in the industry?
Mr. Darling. I hope it has, but I do not believe just cost
alone is going to weed out bad actors. I think some of this is
compliance. My staff will be more than willing to sit down with
your staff to talk through some of the compliance pieces that
we are putting in place to deal with these issues.
Senator Klobuchar. OK. Very good.
Last, CSA data reliability. The 2014 GAO report on CSA data
reliability indicated that a data-driven, risk-based approach
holds promise and can help FMCSA effectively identify carriers
exhibiting compliance or safety issues, such as violations or
involvement in crashes. However, assessing risk for a diverse
population of motor carriers, many of which are small and
inspected infrequently, presents several significant
challenges.
Mr. Darling, does FMCSA have the capacity and resources to
address the challenge of assessing the risk of motor carrier
drivers across the country?
Mr. Darling. I want to start with, we have 1,100 employees
at FMCSA. We have a universe of 500,000 carriers. The numbers
are not great. We could always use more resources, and we will
always continue to request more resources.
On the question of the CSA, the first thing that we are
doing is having the CSA program evaluated by the National
Academies of Science. As soon as that is done, that will also
allow us to look at our resources and look at the methodology
before we can provide a recommendation to this committee and to
Congress.
So we are in the process right now of procuring the
services of the National Academies to help us do a study on our
CSA program.
Senator Klobuchar. Thank you very much.
Thank you very much, Madam Chairman.
Senator Fischer. Thank you, Senator Klobuchar.
That concludes our questioning for Mr. Darling.
I would note that this hearing record will remain open for
2 weeks. During this time, Senators are asked to submit any
questions for the record. Upon receipt, the witness is
requested to submit your written answers to the Committee as
soon as possible.
I would thank you for appearing today.
Mr. Darling. Thank you.
Senator Fischer. With that, the hearing is adjourned.
[Whereupon, at 11:20 a.m., the hearing was adjourned.]
A P P E N D I X
Response to Written Questions Submitted by Hon. John Thune to
Hon. T.F. Scott Darling III
Question 1. Section 5223 of the recently enacted FAST Act places a
clear restriction on the use of CSA analysis in making safety fitness
determinations (SFD) before the flawed analysis has been corrected
using the procedure described in the law. The recent notice of proposed
rulemaking for the new SFD process notes that the violations, and
violation weight measures will be used in evaluating a motor carrier's
safety record. Please provide a detailed explanation of your thoughts
on this potential conflict with the law.
Answer. Section 5223 of the FAST Act prohibits FMCSA from using any
information regarding alerts and the relative percentiles for each
Behavior Analysis and Safety Improvement Category (BASIC). The Safety
Fitness Determination notice of proposed rulemaking (NPRM) does not use
alerts or percentiles. In response to concerns about the Safety
Measurement System (SMS), FMCSA purposefully constructed the NPRM to
use absolute measures of the motor carrier and fixed failure measures.
Therefore, motor carriers are compared to the failure standard, not
each other, in determining if they should be proposed unfit.
Question 2. The proposed Safety Fitness Determination rule also
acknowledges a flaw in the CSA program due to disparate enforcement of
various moving and nonmoving events which result in CSA violations.
What is the FMCSA doing to promote a more uniform enforcement of these
events to fix the flaw? Also, what measures have the FMCSA considered
to account for the disparate enforcement so that geographical and
jurisdictional enforcement issues do not continue to skew carrier's
percentiles?
Answer. As indicated in the Safety Fitness Determination (SFD)
notice of proposed rulemaking, while enforcement differences exist
among the States, the high failure standards proposed in this rule
would be met or exceeded only after a sustained pattern of
noncompliance. If a carrier is proposed unfit as a result of on-road
safety data, it is not the result of these disparities but of recurring
non-compliance. In most cases, the motor carrier would have been
subject to previous interventions, such as warning letters, focused
reviews, and/or civil penalty enforcement actions. If the safety
deficiencies were not corrected, however, the carrier could ultimately
meet or exceed the safety failure standards that result in a proposed
unfit SFD. Additionally, it should be noted that violations are cited
only when there is non-compliance with existing regulations. Motor
carriers that are not in violation of the regulations do not have to be
concerned with potential enforcement variances.
______
Response to Written Questions Submitted by Hon. Deb Fischer to
Hon. T.F. Scott Darling III
Question 1. Regarding the CSA program, as I've mentioned before, I
support utilizing a risk-based approach to developing safety standards.
However, in order to avoid unintended consequences, we need to ensure
that this program is utilizing accurate data and methodology. Would you
please detail for the committee the FMCSA's step-by-step plans and a
timeframe, if possible, to accomplishing the FAST Act requirements for
the CSA program? When does FMCSA expect to have the program certified
and back in order?
Answer. As prescribed in Section 5221, titled ``Correlation
Study,'' FMCSA expects to award a contract to the National Research
Council (NRC) of the National Academies of Sciences (NAS) on February
8, 2016. FMCSA has met with NAS several times in advance of the award
to discuss the FAST Act requirements and provided NAS with background
documents in advance so that the NRC may begin its work immediately
upon award. The timeline for the NAS' work is in keeping with Section
5221(c)'s 18-month requirement for a report to Congress.
Additionally, Section 5222 requires FMCSA to establish a ``Beyond
Compliance'' program as a condition of restoring the Safety Measurement
System. Such a program was already under consideration before enactment
of the FAST Act; the Agency published a Federal Register Notice seeking
comment on April 23, 2015. In addition, the Agency has since conducted
public listening sessions on this topic on January 12 and 31. A second
Federal Register notice is currently being prepared to seek further
comments on a proposed program.
Question 2. Right now, there are no requirements that a shipper or
broker check a motor carrier's qualifications when they hire a truck.
In your opinion, would it improve trucking safety to establish a
requirement that shippers and brokers check that a motor carrier is
authorized to be safe by FMCSA before they hire a truck?
Answer. FMCSA and I continue to advise shippers and brokers to use
all available data in selecting a motor carrier. Shippers and brokers
should confirm, at a minimum, that motor carriers have the proper
registration and authority to operate, have the necessary evidence of
financial responsibility on file with FMCSA, and do not have an
unsatisfactory safety rating or unfit safety determination.
Imposing a new statutory or regulatory requirement on shippers and
brokers to perform these checks before selecting a motor carrier,
however, might or might not improve trucking safety. FMCSA does not
have data or information that would enable us to determine that answer
at this time.
To the extent such legislation placed new burdens on FMCSA to
identify and take enforcement action against shippers or brokers for
failing to perform these checks, however, I would be very concerned
about diversion of scarce agency resources away from our core safety
mission of ensuring that the carriers and commercial motor vehicle
drivers themselves are operating safely.
Question 3. The proposed notice of the Safety Fitness Determination
(SFD) rulemaking clearly states that the FMCSA is using the same
methodology utilized for the CSA program, is using the same BASICs, and
the same peer groups. Further, the ``fixed standard'' by which carriers
will be rated Fit or Unfit is a percentile (96 or 99) of the current
percentiles in the respective Basics and peer groups. Recognizing
serious flaws in the underlying CSA data and methodology, the FAST act
required a National Academy of Sciences review and the development of a
corrective action plan. Can you please explain how your SFD proposal
and the setting of failure threshold percentiles comports with the FAST
Act with relation to the use of data analysis, and the concerns of the
GAO, the DOT Inspector General, and law enforcement with the flawed CSA
comparative analysis?
Answer. As indicated above, Section 5223 of the FAST Act prohibits
FMCSA from using any information regarding alerts and the relative
percentiles for each Behavior Analysis and Safety Improvement Category
(BASIC). In response to concerns about the Safety Measurement System
(SMS), FMCSA purposefully constructed the proposal to use absolute
measures of the motor carrier and fixed failure measures. Therefore,
motor carriers are compared to the failure standard, not each other, in
determining if they should be proposed unfit.
FMCSA also interprets Section 5223, including the prohibition on
making percentiles and alerts available to the general public and the
requirement that percentiles and alerts not be ``used for safety
fitness determinations'' as applying to the safety performance of
individual motor carriers. The references to the 96 and 99 percentiles
in the Safety Fitness Determination proposed rule are included for the
purpose of helping the industry understand that the proposed failure
standards would be equivalent to those percentiles in SMS. To the
extent that FMCSA can be seen as ``using'' the percentiles, it is doing
so only to establish the absolute fixed standard that will be published
shortly before the final rule is published. That standard would not
fluctuate from month to month and could be changed only through
subsequent regulation. As articulated in the NPRM, the Agency will not
use percentiles or alerts to make fitness determinations on individual
carriers.
Question 4. If you recall, I have been a strong advocate of
performance-based regulations that assess risk based on past
performance. Performance based regulatory regimes establish goal-
oriented outcomes, rather than prescribing specific actions for the
regulated entity. I have a more general question about your thoughts as
to the metrics and goals that should be utilized to determine the
effectiveness of FMCSA rulemakings. As the FMCSA moves to more risk
based models such as the SFD and CSA programs, would you agree that the
purpose of safety regulations should be to reduce the frequency and
severity of commercial vehicle crashes? If so, should the FMCSA measure
the effectiveness of its rules by these metrics?
Answer. Yes. When developing rulemakings FMCSA always considers the
costs and benefits, both the safety (i.e., fatalities and injuries
prevented) and economic implications of each rule. The Agency is
required by statute and OMB directives to do so. The estimates of costs
and benefits are based, to the greatest extent practicable on NHTSA's
Fatality Analysis Reporting System (FARS) and General Estimates System
(GES), and FMCSA's Motor Carrier Management Information System (MCMIS)
crash data. The Agency estimates the number of crashes attributable to
certain lapses in safety management controls or unsafe practices, and
the percentage of those crashes that could be prevented altogether, or
reduced in severity. The Agency requests public comments on the
regulatory proposals and encourages comments to review its estimates of
the costs and benefits.
As to measuring regulatory effectiveness, sometime after a rule has
been implemented--usually a few years--the Agency may conduct a study
to determine whether the regulation has accomplished the safety goal
described in the rulemaking. Those studies do look at reductions in the
frequency and severity of CMV crashes and fatalities, which are at the
core of FMCSA's mission. It is difficult to measure the effectiveness
of a particular rule in improving safety, of course, since crashes
depend on a great variety of factors, some so transitory that they
cannot adequately be measured while others reflect overall traffic
volume. Attributing a decline in crashes--in other words, crashes that
did not occur--to any particular rule is a challenge that statistical
analysis cannot always meet.
Question 5. A number of petitions were filed by the motorcoach
industry for reconsideration of the final rule concerning the lease and
interchange of passenger vehicles. Can you provide an update on where
the FMCSA stands with regard to responding to these petitions?
Answer. FMCSA received numerous petitions for reconsideration of
the final rule concerning the lease and interchange of passenger
vehicles. The petitions provided more in-depth and detailed information
than FMCSA received from the comments filed during the rulemaking
process. We are analyzing the new information to determine if the
petitions will be granted. FMCSA will respond to the petitioners when
we determine our course of action.
Question 6. I understand there have been positive discussions held
with the motorcoach industry, including discussion of viable solutions
to address the issues raised in the petitions. Because compliance with
the rule is scheduled for January 2017, just at the time when a new
Administration would be taking office, can you provide any assurances
that this issue will be resolved prior during your tenure in office?
Answer. Yes, we have held positive discussions with the motorcoach
industry as to the best way forward on bus leasing. The Agency is
actively working to complete its review of the petitions and plans to
issue decisions later this year before the compliance date.
Question 7. As mentioned during the confirmation hearing, the FMCSA
must study the impact the Hours-of-Service regulations on safety and
has already contracted out for the study. As you know, members of
Congress have expressed concern with the July 2013 revised Hours-of-
Service regulations. Do you expect the outcome of this study to
underscore the concerns raised by members on the Hours-of-Service
Study?
Answer. I am very committed to fulfilling the study requirements of
Sec. 133 of the 2015 Consolidated Appropriations Act. As you know, this
law required a study comparing the relative net benefits, in terms of
operational, safety, health and fatigue impacts, of the restart
provisions in effect before and after July 1, 2013. We recognize that
the 2015 law required FMCSA to submit the study to the DOT IG for
review last year. However, I believed the public interest would be best
served by ensuring the Agency collected as robust a data set as
possible before submitting the study to Congress.
Following enactment of the 2015 law, the Agency sought out a wide
variety of motor carriers and drivers to collect an incredible set of
operating data for the study. Due to the exemplary planning and
execution provided by our researchers and the cooperation of many motor
carriers and drivers, I am pleased to report that the draft report is
complete and is currently undergoing Departmental review.
While I am committed to releasing the results of the study as soon
as possible, Sec. 133(e) of the 2015 Appropriations Act included
specific reporting requirements that we must follow. Specifically, once
the Departmental review is complete, the law requires FMCSA to submit
the study to the DOT Office of Inspector General for a 60 day review to
determine compliance with the study requirements under the 2015 law.
Following the completion of the IG's review, the law requires that we
submit the study to Congress.
I will continue to update you on our progress to complete this
important study.
______
Response to Written Question Submitted by Hon. Steve Daines to
Hon. T.F. Scott Darling III
Question. Mr. Darling, thank you for testifying again before the
Commerce Committee. As we have discussed, my home, Montana, is the 4th
largest state. Last year, Montana's nearly 75,000 miles of public roads
supported over 12 billion vehicle miles traveled. We face unique
transportation challenges and an extraordinary dependence on our
transportation infrastructure. Safety and efficiency are critical when
commuting across our widespread state.
You previously testified before this Committee in March of last
year. At that time, your term as Acting Administrator was expiring in
19 days. I asked you what the contingency plan was for the Federal
Motor Carrier Safety Administration (FMCSA) after your term expired,
leaving FMCSA without an Administrator. You only stated there would be
adequate administrative support going forward. In total, it took the
Administration 345 days to make a nomination. Congratulations on
securing the nomination. You have now been the Acting Administrator or
the de-facto head for over 513 days.
How will the FMCSA be managed more efficiently should you be
confirmed? Specifically, what will be different over the next 11 months
compared to the current status quo?
Answer. Last year, the Agency accomplished much to advance safety
of commercial motor vehicles (CMVs) on our Nation's roadways. We
published the Electronic Logging Device final rule, which will save
lives and dramatically reduce paperwork burdens on the industry. We
published a final rule prohibiting motor carriers, brokers, freight
forwarders, shippers and receivers from coercing drivers to violate
Federal safety regulations. The Agency also conducted a negotiated
rulemaking, bringing a diverse group of stakeholders to the table to
come together on new standards for the training of entry-level drivers
of CMVs. In addition to these rules, the Agency has conducted public
listening sessions on key safety issues, promoting stakeholder
engagement and discussion.
If confirmed, I will lead FMCSA in broadening and strengthening our
partnerships with stakeholders to build on our 2015 achievements. We
are committed to working with Congress as we put in place dozens of
FAST Act provisions. For example, we will streamline our grant programs
to give States increased flexibility to tailor funding to conditions on
the ground. We are taking comments from stakeholders and the public on
an incentive program to encourage carriers to adopt cutting edge safety
technology and practices. And the National Academy of Sciences study on
the effectiveness of our CSA program is scheduled to begin in the
coming days.
At my direction, FMCSA is also creating a new Program Integration
Office (PIO) to improve the efficiency of Agency management long term.
The PIO's draft mission statement is ``to champion consistent project
integration and synchronization practices, which will allow FMCSA to
effectively prioritize and manage projects and resources that will help
the agency fulfill its mission and strategic goals. In addition, the
PIO governs high priority and high/medium risk projects in coordination
with the FMCSA Leadership Team.'' Goals and objectives of the new
office, which would be headed initially by a GS-15 career employee,
include defining and managing high and medium risk priority projects,
integrating and synchronizing projects across FMCSA offices, improving
our project management processes and support through better employee
training, experience and leadership, and making sure projects are on
time, cost-effective and within scope.
______
Response to Written Questions Submitted by Hon Maria Cantwell to
Hon. T.F. Scott Darling III
Question 1. Mr. Darling, I want to discuss an incident that
occurred in Seattle last September, when an amphibious duck boat
vehicle used for city tours crashed into a charter bus on the Aurora
Bridge. This accident was nothing short of a tragedy, claiming the
lives of five people, many of them young people. I hope that the
National Transportation Safety Board completes its investigation into
the crash in a timely manner, so we can know what happened.
Because the vehicles involved in the crash only operate within
Washington state, neither the duck boat nor the charter bus service
fall under the jurisdiction of the Federal Motor Carrier Safety
Administration. However, it does beg the question of what FMCSA is
doing to enforce safety regulations and practices for these types of
vehicles, particularly the use of seatbelts on charter buses and other
motorcoach services. What is FMCSA doing to enforce current seatbelt
regulations for charter buses and motor coaches? Does FMCSA plan to
update passenger safety regulations after the NTSB completes its
investigation of the Seattle Ride-the-Ducks crash?
Answer. Enforcement of regulations requiring bus and motorcoach
drivers to wear seat belts is part of FMCSA and States procedures
during vehicle inspections or traffic enforcement. While seat belts are
mandatory only on new motorcoaches built after November 2016, FMCSA
will have no authority to require motorcoach passengers to use them.
However, FMCSA works with the passenger-carrying industry to encourage
the use of seat belts when installed and through our ``Learn Before You
Board'' bus safety tips for passengers on our website: https://
www.fmcsa.dot
.gov/sites/fmcsa.dot.gov/files/docs/LearnBeforeYouBoard_V1_2_508.pdf
FMCSA will evaluate the need to update our passenger safety
regulations once the NTSB investigation is complete and we have the
opportunity to explore the NTSB findings and recommendations.
Question 2. Mr. Darling, you may remember that in 2013 an oversize
truck struck a bridge crossing the Skagit River and caused the bridge
to collapse. The bridge was a major crossing along the I-5 corridor,
and the collapse caused serious and long terms delays for transit and
commerce. After NTSB had concluded its investigation, it recommended
that the Federal Motor Carrier Association update its Pilot Car Best
Practices Guidelines and develop a model oversize vehicle program.
What is the status of this model pilot car program that the NTSB
recommended? Have the Pilot Car best Practices been revised at all? How
is the Skagit River Bridge Crash informing the development of this
program? Does the Federal Motor Carrier Safety Administration have a
timeline for its implementation?
Answer. In its July 2014 report on the Skagit River Bridge
collapse, the National Transportation Safety Board issued a
recommendation to the Federal Highway Administration (FHWA), the
Specialized Carriers & Rigging Association, and the Commercial Vehicle
Safety Alliance: to ``work together to revise the Pilot Car Escort Best
Practices Guidelines and related training materials to ensure that they
contain updated recommended practices for pilot/escort vehicle
operations, and disseminate the revised documents to groups that
provide pilot/escort vehicle driver training.''
In collaboration with the Specialized Carriers & Rigging
Association and other stakeholders, FHWA has: developed an annotated
course outline; completed a draft of the training materials and Pilot
Car Escort Best Practices Guidelines; and conducted a trial training
session in Texas using the updated materials. Currently, FHWA is
revising these materials based on feedback from the trial session. By
October 2016, FHWA anticipates disseminating the revised documents to
groups that provide pilot/escort vehicle driver training. The FHWA will
make these documents available to support the activities the American
Association of State Highway and Transportation Officials and others
may undertake to complete a separate NTSB recommendation to institute a
model training and certification process.
Question 3. Mr. Darling, I want to discuss the new proposed rules
for the Safety Fitness Determination that were issued last week, and
how it will affect post-accident investigations. This new rating system
will change the current system from the three-tier ``satisfactory,
conditional, and unconditional'' with a two-tiered system, where a
trucking company or bus company with either be deemed fit or unfit to
operate. While I imagine this will help the Federal Motor Carrier
Association inspect more companies and ensure that compliance is met,
it is important that FMCSA does not sacrifice safety for efficiency,
especially when doing these post-crash assessments like the Skagit
River Bridge. How will the new rating system affect post-crash
investigations? What is FMCSA doing to ensure that these new standards
are being devised with safety as the top priority?
Answer. FMCSA's SFD proposed rule does not affect post-crash
investigations. In addition, the SFD proposal maintains FMCSA's
existing policy of only using preventable crashes in determining safety
ratings.
______
Response to Written Questions Submitted by Hon Richard Blumenthal to
Hon. T.F. Scott Darling III
Question 1. Issue: The urgent need for the return of hours of
service rules
In 2013, your agency instituted critical new rules to prevent
drivers from being forced to work nearly 80 hours a week, which causes
dangerous fatigue, which in turn leads to poor judgment, slowed
reaction times, and loss of situational awareness by truck drivers.
Those rules were the product of years of scrutiny, analysis and
even litigation. Unfortunately, in several misguided legislative
actions in 2014 and 2015, Congress put those rules on hold while
requiring the Federal Motor Carrier Safety Administration to study the
rules even further. Now, with the rules on hold, truck drivers continue
to be in a dangerous, precarious position where they'll be forced to
continue working long, grueling hours, raising safety concerns.
It is imperative that those rules return ASAP.
If you are confirmed as administrator, how swiftly will you move to
complete the study requirements, as Congress required? How committed
are you to returning the hours of service rules so we ensure truck
drivers get adequate rest and the traveling public is protected?
Answer. I am very committed to fulfilling the study requirements of
Sec. 133 of the 2015 Consolidated Appropriations Act. As you know, this
law required a study comparing the relative net benefits, in terms of
operational, safety, health and fatigue impacts, of the restart
provisions in effect before and after July 1, 2013. We recognize that
the 2015 law required FMCSA to submit the study to the DOT IG for
review last year. However, I believed the public interest would be best
served by ensuring the Agency collected as robust a data set as
possible before submitting the study to Congress.
Following enactment of the 2015 law, the Agency sought out a wide
variety of motor carriers and drivers to collect an incredible set of
operating data for the study. Due to the exemplary planning and
execution provided by our researchers and the cooperation of many motor
carriers and drivers, I am pleased to report that the draft report is
complete and is currently undergoing Departmental review.
While I am committed to releasing the results of the study as soon
as possible, Sec. 133(e) of the 2015 Appropriations Act included
specific reporting requirements that we must follow. Specifically, once
the Departmental review is complete, the law requires FMCSA to submit
the study to the DOT Office of Inspector General for a 60 day review to
determine compliance with the study requirements under the 2015 law.
Following the completion of the IG's review, the law requires that we
submit the study to Congress.
I will continue to update you on our progress to complete this
important study.
Question 2. The Federal Motor Carrier Safety Administration set
minimum insurance levels for trucking companies. The minimum is
$750,000 for most carriers of property. This amount was last changed in
1985--31 years ago--even though $750,000 pales in comparison to the
damage a massive, 80,000-pound rig can do to motorists on our highways.
The FMCSA has considered increasing this amount, concluding in 2014
that ``current financial responsibility minimums are inadequate to
fully cover the costs of some crashes in light of increased medical
costs and revised value of statistical life estimates.''
Unfortunately, the FAST Act--which became law in December 2015 and
has many positive elements--institutes a delay, requiring an exhaustive
study of the industry before any responsible rulemaking about insurance
can move forward.
If you are confirmed as administrator, how quickly will you work to
complete this study, as Congress required, so you can then adequately
increase insurance amounts? Is 31 years too long to go without raising
the minimum insurance amount trucking companies must have to protect
against loss and liability?
Answer. The FAST Act requires the Agency to conduct a study on the
adequacy of current levels of insurance prior to initiating rulemaking.
Prior to initiating any rulemaking in this area, FMCSA plans to
continue to engage in widespread public outreach regarding the issue of
increasing the minimum levels of insurance for motor carriers. Any
study on the adequacy of current and proposed levels of insurance would
be substantially strengthened if researchers were able to obtain
privately-held pricing and cost information from insurance companies
and motor carriers, respectively, as well as settlement information
from private parties to litigation. We recognize there may be
significant challenges to obtaining this data.
Question 3. Issue: The need for FMCSA action on outstanding NTSB
recommendations
In January 2016, the National Transportation Safety Board released
its ``Most Wanted'' List of safety improvements, which broadly covers
topics the NTSB says need to be addressed urgently. That list includes
many priorities that impact trucking:
Instituting collision avoidance technology in highway
vehicles;
Ending distracted driving;
Ending substance impairment;
Expanding use of recorders;
And reducing fatigue-related accidents.
On top of this, the NTSB has issued a host of recommendations
related to these priorities. The FMCSA has 54 outstanding
recommendations from the NTSB.
If you are confirmed as administrator, what is your plan to address
the trucking-related priorities on the NTSB's Most Wanted List? What is
your plan to close the NTSB's outstanding recommendations? When will
all of this be complete?
Answer. First, I would like to assure you that, if confirmed, I
will remain committed to achieving the Agency's mission to reduce truck
and motorcoach injuries and fatalities on our Nation's roadways.
All of us at FMCSA appreciate the work that our colleagues do at
the National Transportation Safety Board (NTSB) and stand ready to work
closely with them to further our shared safety goals. Many of the
priorities on NTSB's 2016 ``Most Wanted'' list focus on areas that we
have been addressing for some time. Of the 54 open recommendations we
have from the NTSB, many pertain to the issues of safety fitness
determination, electronic logging devices, distracted driving, drug and
alcohol clearinghouse, and medical fitness to drive CMVs in interstate
commerce. We are in the process of formally requesting closure of these
recommendations because of rulemakings under way or already completed.
FMCSA is making progress in addressing the remaining open
recommendations.
We are working diligently to bring long-open recommendations to
closure. Since June 1, 2015, FMCSA has achieved closure of 17 open
recommendations, and we will submit a request to the NTSB no later than
September 30, 2016, to formally request closure of an additional 30
recommendations.
Question 4. Issue: The need for FMCSA action on entry-level driver
training
The surface transportation bill that Congress passed in 2012--also
known as MAP-21--required the FMCSA to establish rules governing entry-
level driver training for commercial drivers, including behind-the-
wheel training and certain hours of instruction. That rule was due over
two years ago, and I understand there have been many conversations with
industry, but still there's no rule. You mention the importance of this
effort in your testimony.
What is the status of that rule? If you are confirmed as
administrator, when will it be complete? Isn't it important we have a
set of Federal standards governing drivers who are seeking a Commercial
Drivers' License?
Answer. In 2015, the Agency convened a negotiated rulemaking
committee to reach consensus on entry-level driver training (ELDT).
This committee was composed of representatives from the driver training
industry, commercial and state enforcement, insurance, labor, the motor
carrier industry, safety advocacy groups, and school transportation
communities, as well as FMCSA. Exceeding our expectations, this
committee completed its work and submitted a unanimously approved
report to the Agency within 5 months. That report served as the basis
for a Notice of Proposed Rulemaking on ELDT that the Agency drafted,
and which is now under review at the Office of Management and Budget.
We plan to issue the NPRM in early spring and a final rule later this
year.
Question 5. The need for a rulemaking on speed limiters
In 2006--ten years ago--industry stakeholders petitioned FMCSA and
the National Highway Traffic Safety Administration (NHTSA) to pursue a
rulemaking to mandate speed limiters on heavy trucks, i.e., devices
that restrict a truck to a pre-programmed maximum speed--in use
throughout Europe.
Research has shown that speed limiters can significantly reduce the
number of crashes involving heavy duty trucks.
In 2011, NHTSA began drafting a proposal, and in May 2013, FMCSA
decided to join NHTSA in the formal rulemaking process. According to
both agencies, the rulemaking would consider a new Federal Motor
Vehicle Safety Standard that would require the installation of speed-
limiting devices on heavy trucks.
I understand FMCSA and NHTSA believe this rule would help decrease
the estimated 1,115 fatal crashes each year involving heavy trucks on
roads with posted speed limits of 55 mph or above.
For years, DOT has said it is developing a rule, but we haven't
seen it come out yet.
If you are confirmed as administrator, when will this rulemaking be
complete?
Answer. In response to petitions for rulemaking from the American
Trucking Associations (ATA) and Road Safe America to initiate
rulemaking to require manufacturers to limit the speed of heavy
vehicles, the National Highway Traffic Safety Administration (NHTSA)
and FMCSA are proposing regulations that would require vehicles with a
gross vehicle weight rating of more than 26,000 pounds to be equipped
with a speed limiting device. This joint rule would require motor
carriers operating such vehicles in interstate commerce to maintain
functional speed limiting devices for the service life of the vehicle.
The Department submitted the draft NPRM to the Office of Management
and Budget (OMB) on May 19 where it remains under review. We are
committed to publishing it as soon as possible.
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