Testimony of Mark V. Rosenker, Chairman
National Transportation Safety Board
Before The
Committee on Commerce, Science, and Transportation
Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security
U.S. Senate

May 1 , 2007


Good afternoon Chairman Lautenberg, Ranking Member Smith, and Members of the Subcommittee.  Thank you for allowing me this opportunity to present testimony on behalf of the National Transportation Safety Board regarding Electronic On-Board Recorders for Hours-of-Service Compliance. It is my privilege to represent an agency that is dedicated to the safety of the traveling public.

As you know, the NTSB is an independent Federal agency charged by Congress with investigating every civil aviation accident in the United States and significant accidents in other modes of transportation – railroad, highway, marine, and pipeline, and issuing safety recommendations to prevent future accidents.  The Safety Board also oversees the assistance to victims and their families following commercial aviation accidents and also acts as the Court of Appeals for airmen, mechanics and mariners whenever certificate action is taken by the Federal Aviation Administrator or the U.S. Coast Guard Commandant or when civil penalties are assessed by the FAA

Since its inception in 1967, the Safety Board has investigated about 138,000 aviation accidents and thousands of surface transportation accidents. In addition, the Safety Board has issued more than 12,600 safety recommendations in all modes of transportation. Although we do not have authority to regulate safety, our reputation and our perseverance in following-up on safety recommendations has resulted in an 82 percent acceptance rate for our recommendations.

Today, I would like to talk about how technology can help prevent fatigue-related accidents by improving commercial driver compliance with the hours-of-service regulations.

First, I would like to complement the FMCSA on beginning this process and framing the public debate by issuing an NPRM on Electronic Data Recorders for Hours of Service.

As you know, FMCSA issued this proposed rulemaking on January 18, 2007 and asked for comments by April 18, 2007. Although this very important rulemaking has the potential to greatly improve the compliance with hours-of-service rules, and ultimately reduce fatigue-related accidents, the Board believes that it will not accomplish this in its present form.

First I would like to give you some background and long history on the Board’s position on this issue.

For the past 30 years, the Safety Board has advocated the use of on-board data recorders to increase hours-of-service compliance of commercial drivers. As you know, commercial drivers are currently required to keep logbooks on the hours they drive. However, for many reasons these log books often do not reflect the true hours of operation. Because most drivers are paid by the mile, and motor carriers make more money the more miles that are driven by their drivers, neither party has adequate incentives for compliance with the hours-of-service rules. The current system of paper logbooks offers many opportunities to play fast and loose with these rules. Some unscrupulous drivers write down hours different from those that they actually drive, some maintain multiple logbooks, and some outright falsify the information. In addition, some motor carriers do not closely monitor their drivers’ compliance with the rules and some may actually coach their drivers on how to fudge their logbook. It is not comical, but many in the truck and bus industry call these logbooks “comic books”.

Let me summarize some of the key events that have led to the Board’s position on hours-of-service compliance.

In 1977, the Safety Board issued its first recommendation on the use of on-board recording devices for commercial vehicle hours-of-service compliance. It was in response to the Federal Highway Administration’s withdrawal of an Advance Notice of Proposed Rulemaking concerning the installation of tachographs in interstate buses. That recommendation proposed that the FHWA:

Conduct scientifically controlled studies to determine the effects and merits of the use of tachographs on commercial vehicles in reducing accidents. (H-77-32)

Although FHWA studied the issue, they did not make any changes

In the 1980’s, the technology for onboard recorders for hours-of-service improved dramatically.

In 1990, the Safety Board first urged the FHWA to mandate the use of on-board recorders. The Board made this recommendation in its 1990 safety study on Fatigue, Alcohol, Drugs, and Medical Factors in Fatal-to-the-Driver Heavy Truck Crashes. This study concluded that on-board recording devices could provide a tamper-proof mechanism to enforce the hours-of-service regulations. The study also found that, of the 182 accidents investigated, the most frequently cited factor or probable cause in these accidents was fatigue, cited in 31 percent the cases. Alcohol was second at 29 percent. Therefore, the Safety Board recommended that the FHWA:

Require automated/tamper-proof on-board recording devices such as tachographs or computerized logs to identify commercial truck drivers who exceed hours-of-service regulations. (H-90-28)

An identically worded companion recommendation was made to the States, the Commonwealth of Puerto Rico, the Virgin Islands, and the Territories (H-90-48).

This recommendation was rejected by the FHWA and the states.

In 1995, the Board reiterated this safety recommendation (H-90-28) in its safety study on “Factors That Affect Fatigue in Heavy Truck Accidents” in which 107 heavy truck accidents were studied.  The study also noted that the incidence of driver fatigue is underrepresented in the Fatality Analysis Reporting System (FARS) database.

Both the FHWA and the states failed to act on this recommendation.

In 1998, the Safety Board again advocated industry-wide use of on-board recording devices after investigating a multiple-vehicle accident that occurred in Slinger, Wisconsin, on February 12, 1997 in which 8 persons died. This time, the Board tried a different approach and made recommendations directly to industry by way of the American Trucking Associations, the International Brotherhood of Teamsters, the Motor Freight Carriers Association, the Independent Truckers and Drivers Association, the National Private Truck Council, and the Owner-Operator Independent Drivers Association, Inc. The recommendation was:

Advise your members to equip their commercial vehicle fleets with automated and tamper-proof on-board recording devices, such as tachographs or computerized recorders, to identify information concerning both driver and vehicle operating characteristics. (H-98-26) (H-98-23)

This recommendation was opposed by the industry.

In August 12, 2001, the Safety Board reiterated its position regarding the use of on-board recorders for hours-of-service compliance in its response to the FMCSA’s NPRM on Hours-of-Service of Drivers. In our response, the Safety Board again requested that the FMCSA strongly consider mandatory use of EOBRs by all motor carriers to help improve hours-of-service compliance.

FMCSA did not incorporate this suggestion into the NPRM.

Finally, 2 weeks ago on April 18, 2007 the Board sent a letter to FMCSA expressing its disappointment with the notice of proposed rulemaking entitled “Electronic On-Board Recorders for Hours-of-Service Compliance”. Let me highlight some of the reasons why the Board felt the NPRM fell short of its intended target.

As you know, the NPRM focuses on three elements:

With respect to the first element, the Safety Board is generally satisfied with the direction proposed by the FMCSA except in the area of crash protection. Performance standards offer flexibility in the face of rapid technological advances; thereby requiring minimal-to-no changes to pertinent regulations. The NPRM makes several proposals designed to ensure the security and validity of EOBR data, but it fails to address EOBR damage resistance and data survivability. Naturally, the survival of the data is important, not only for regulatory compliance, but also to assist accident investigators determine the influence of fatigue on the driver and the cause of the accident. Therefore, in its comments on FMCSA’s NPRM, the Safety Board asked FMCSA to add performance standard factors that consider these issues.

Concerning the second element, the Safety Board believes onboard recorder technology should be applied to all carriers, subject to the hours-of-service regulations. We are disappointed that the proposed rules will only require EOBRs for carriers who are identified through the compliance review process as “pattern violators” of the hours-of-service regulations.

Identifying such carriers seems problematic. For example, for a carrier to be identified as such, the FMCSA must perform at least two compliance reviews on that carrier within a 2-year span. In 2005, the FMCSA was only able to perform a total of 8,097 compliance reviews on a population of approximately 911,000 active and registered carriers, meaning that less than 1 percent of all carriers were assessed for safety and fitness. Although the FMCSA uses a computerized rating methodology (SafeStat) to target potentially unsafe carriers for compliance reviews, flaws in the compliance review system guarantee that many unsafe carriers continue to evade even initial identification as an hours-of-service violator. The Safety Board has documented several instances in which carriers have received favorable compliance review ratings despite long and consistent histories of driver- and vehicle-related violations. For example, this was the case for the operator and vehicle involved in the recent investigation of the motorcoach fire that fatally injured 23 people near Dallas, Texas.

In light of the proven deficiencies in the FMCSA motor carrier compliance program, this program should not be the triggering mechanism to initiate a requirement for EOBRs. The Safety Board does not believe that the FMCSA has the resources or processes necessary to identify and discipline all carriers and drivers who are pattern violators of the hours-of-service regulations.

Consequently, a program to impose EOBRs on pattern violators that relies on the compliance program to identify such carriers seems unlikely to succeed. In addition, pattern violators of hours-of-service regulations are the carriers least likely to choose to install and use EOBRs voluntarily. The Safety Board is therefore convinced that the only effective way in which EOBRs can help stem hours-of-service violations, which the Board has linked to numerous fatigue-related accidents, is to mandate EOBR installation and use by all operators subject to hours-of-service regulations.

Additionally, the Safety Board is concerned that the NPRM proposes using EOBRs as a form of remediation or punishment, when the technology has significant potential for increasing the safety of all motorists. According to the NPRM, “… motor carriers that have demonstrated a history of serious noncompliance with the hours-of-service (HOS) rules would be subject to mandatory installation of EOBRs meeting the new performance standards.” The Safety Board believes that encouraging motor carriers to perceive EOBRs primarily as a means of punishment would undermine the goal of achieving voluntary industry-wide acceptance. In fact, progressive motor carriers are using EOBRs as an effective tool in shipment tracking, equipment maintenance, and operator scheduling. In addition, EOBRs provide a more efficient and reliable way for enforcement agencies to monitor hours-of-service compliance. Finally, the Europeans have required the use of digital tachographs for decades.

With respect to the NPRM’s third element, the proposed rulemaking outlines several incentives that the FMCSA hopes will promote the voluntary installation and use of EOBRs. Among these incentives are new compliance review procedures and exemptions for certain supporting documentation requirements. The Safety Board is in favor of any incentive that fosters use of EOBRs without undermining safety; however, the Board is skeptical whether the incentives currently proposed would be strong enough to override the financial motivation some carriers and drivers have for continuing to circumvent the HOS regulations and not use EOBRs.

In summary, the Safety Board is convinced that the regulations proposed in the current NPRM:

Accordingly, the Safety Board urges the FMCSA to revise the NPRM to require that all motor carriers, subject to the HOS regulations, install and use EOBRs.

The trucking industry in the United States has already installed hundreds of thousands of devices capable of recording hours-of-service information. We believe it is past time to act and that the use of EOBRs should be mandatory throughout the industry, as are similar devices required in most of Europe.

Fatigue-related accidents continue to plague our nations highways and because fatigue, unlike alcohol or speeding, is extremely difficult to detect. In fact, fatigue is probably the most underreported causal factor in highway accidents. Electronic on-board recorders hold the potential to efficiently and accurately collect and verify the hours of service for all drivers. They will also establish the proper incentives and a level playing field for compliance with hours-of-service rules and will ultimately make our highways safer for all drivers.

I would be delighted to respond to any questions you may have.



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