FHWA Proposes to Let States Fail Their Own Safety Goals With Impunity

This story has been updated to reflect comments and clarifications from the FHWA.

Secretary Anthony Foxx has made clear that safety — and specifically, safety for bicyclists and pedestrians — is a priority of his administration. If that’s true, his administration sure has a funny way of showing it.

More of this happening on your state's roadways? Bring it! FHWA doesn't mind. Photo: ##http://www.syracuse.com/news/index.ssf/2012/02/two_drivers_sent_to_area_hospi.html##Post-Standard##
More of this happening on your state’s roadways? Bring it! FHWA doesn’t mind. Photo: ##http://www.syracuse.com/news/index.ssf/2012/02/two_drivers_sent_to_area_hospi.html##Post-Standard##

The Federal Highway Administration’s proposal on safety performance measures allows states to fail to meet half their own safety targets without consequences. And it gives the seal of approval to worsening safety performance as long as people in that state are driving more.

The MAP-21 transportation bill was cheered for instituting performance measures, but it left it the details up to U.S. DOT. The first of three Notices of Proposed Rulemakings — U.S. DOT’s proposals for how to set up this system of accountability — was released earlier this week. This one is on safety; the next two will be on 1) infrastructure condition and 2) congestion and system performance. These rulemakings are slipping behind schedule but were always expected to be implemented well after MAP-21 expires September 30.

People on foot and on bikes “left out”

First, bike and pedestrian advocates are bitterly disappointed that their demand for a separate performance measure on vulnerable road users was not included. “Once again, bicyclists have been left out,” said Bike League President Andy Clarke in a blog post Tuesday. “We know that without a specific target to focus the attention of state DOTs and USDOT on reducing bicyclist and pedestrian deaths within the overall number — we get lost in the shuffle.”

DOT is requesting comments on how a performance measure for bicyclists and pedestrians might be possible, but also makes clear it’s unlikely to implement one. The agency says that “separating specific types of fatalities… leads to numbers too statistically small to provide sufficient validity for developing targets.”

We’ve asked FHWA for comment for this story. We’ll update when we hear back.

“This proposal is a solid first step in ensuring states use a data-driven approach to improve safety for everyone who uses the road,” said a spokesperson for FHWA. “We look forward to receiving comments and developing a new rule that will reduce traffic fatalities and serious injuries on all public roads.”

UPDATE: In a March 19 webinar, an FHWA official said that this month, the National Highway Traffic Safety Administration and the Governors Highway Safety Association negotiated the possibility of a bicycle fatality performance measure as one of the new measures, “and that will begin, hopefully, in FY2015.”

50 percent failure = A for effort

The only four performance measures FHWA is requiring are: 1) number of fatalities, 2) rate of fatalities, 3) number of serious injuries, and 4) rate of serious injuries. States can choose to add separate targets for urbanized and non-urbanized areas.

Things go from bad to worse in Section 490.211: “Determining Whether a State DOT Has Made Significant Progress Toward Achieving Performance Targets.” Here, it becomes clear that FHWA intends to let states skirt accountability entirely.

Since FHWA recognizes that many factors “could be outside of a State DOT’s control,” they propose deeming progress acceptable if states meets — or at least makes “significant progress” toward — 50 percent of their targets, or two of the four. Acceptable progress means the state won’t have requirements placed on its use of Highway Safety Improvement Program safety money.

Note that FHWA “seeks comment on whether 50 percent is the appropriate threshold for determining if a State has overall achieved or made significant progress toward achieving its performance targets.” The agency is holding a web forum Monday.

Safety targets are meaningless

If a state fails to meet a target, it would then be evaluated to determine whether it has at least made “significant progress.” Only if a state fails to meet more than half its targets — three out of the mandated four — would it then get evaluated. At that point, the basis of the evaluation is no longer the stated target but the state’s own historical trend line over the last 10 years. As long as the state’s actual performance was within a 70 percent “prediction interval” of the 10-year trend line, it’s given a pass.

In the fictional example FHWA gives, if a state sets a target of 759 fatalities but actually has 769, they would look at the trend line.

Failed to meet your safety targets? No problem, as long as you're not doing too much worse than you usually do. Image: FHWA
Failed to meet your safety targets? No problem, as long as you’re not doing too much worse than you usually do. Image: FHWA

In this case, the trend line, plus the “prediction interval” sets the upper bound of the acceptable number of fatalities at 825.66. So despite the fact that this fictional state has a new seat belt law and set a goal for itself of reducing fatalities to the still-astronomical number of 759, FHWA says not only is it totally fine to have 10 more people die on the road than planned; it would have been fine to have 66 more people die on the road than planned.

If these performance measures were intended to keep states accountable, it appears they’re a long way away from achieving that goal.

Meanwhile, FHWA notes that there will be a long time lag in assessing performance, since it will be using data from the Fatality Analysis Reporting System and the Highway Performance Monitoring System: “The FHWA must wait 3 years, until [calendar year] 2020, to assess whether CY 2017 targets were achieved because the FARS and HPMS data are not available until that time.” Presumably, it would then take another year for states to change course in an attempt to remedy the situation.

More people dying? No problem — just keep driving!

Let’s go back to those four simple performance measures to examine the next major problem with FHWA’s approach: Two of the four measures look at the “rate” of serious injuries and fatalities, based on vehicle-miles traveled.

Those measures don’t remotely represent people on foot or on a bicycle, for whom vehicle-miles traveled is meaningless. And worse, states can hide increased fatalities by increasing VMT, an outcome that helps no one. But since a state needs to fail three of the four required categories to even warrant evaluation, it means fatalities and injuries can increase so long as VMT is going up.

As an FHWA spokesperson noted, the requirement to reduce fatalities and injuries per vehicle-mile-traveled was set by Congress in MAP-21, and so the agency is merely implementing Congress’s vision.

UPDATE: In the March 19 webinar, an FHWA official said that while they can’t express monetarily all the benefits of the proposed rule — including better decision-making, greater accountability in the use of federal funds, and progress toward the national goal for safety — they do use a break-even analysis to figure out at what point the quantifiable benefits would justify the costs of the new safety protocol. The answer: The rules would need to prevent less than one fatality or 15 injuries each year across the country to be worth the costs.

Timing

This safety approach, anemic as it is, is still a long way away from implementation.

The FHWA has opened up a 90-day comment period on this rulemaking. The agency has said it wants to wait until all three rulemakings are complete to begin implementation, in spring 2015 as a best-case scenario.

MAP-21 was celebrated for ushering in an era of reform based on performance and accountability, but judging by the way FHWA proposes to run the program, it will prove to be anything but.

  • Joe Linton

    Is there any real funding consequence? Would FHWA actually yank funding if states fail everything?

  • chekpeds

    Should we start a petition ? Clearly the motordom lobbyists are more organized than the ped lobbyists .

  • oooBooo

    Let’s stop acting like bicycling is dangerous. It’s not. It’s very safe. It’s been so for decades.

    Of the bicycling deaths the vast majority, if what I learned years ago is still true, are due to the actions of the bicyclist or the driver was severely impaired. The later is overlapped with other efforts and requires no special action for bicycling. The former can be dealt with by education. Specifically vehicular bicycling education that dispels various notions that bring about comparatively unsafe riding.

    Vehicle miles traveled is valid if one is trying to substitute bicycling miles for driving miles. But for overall safety I agree it is misleading. This is why back in the day when bicycling politics was about vehicular equality rather than an anti-car agenda, the measure used was hours of exposure. Bicycling comes out as I recall, safer than climbing stairs. It was also shown to be safer than motoring on this basis. Often these values were used to show that requiring the wearing of foam hats to be bunk unless we started wearing them for many daily activities.

    Unless people want government interference into bicycling, that is licensing, it is up to the bicycling community to educate riders. The thing governments should do is follow the lead of Pennsylvania and publish things like this:
    http://www.dot.state.pa.us/Internet/Bureaus/pdBikePed.nsf/BikePedHomepage?openframeset&Frame=main&src=InfoBikeManual?readform

    If you wait for government to do something, expect a long wait. It does bicycling no good to pretend its dangerous and requires government action to make it safe.

  • StefanieA

    No. They would be required to create a plan explaining how they will do better and to obligate funds through the HSIP program.

  • StefanieA

    National organizations will have more about these rules in the coming weeks, including ways to be involved.

  • neroden


    Note that FHWA “seeks comment on whether 50 percent is the
    appropriate threshold for determining if a State has overall achieved or
    made significant progress toward achieving its performance targets.””

    OK, how can we comment and say…. “no” to this asinine 50% idea? Tell us when the comment period opens and how to comment. This has to be federal register stuff, there must be a formal procedure.

  • Edward Smith

    Probably would get extra federal funds to fix it.

  • Anne A

    Ask your senators and representative to co-sponsor the Bike & Pedestrian Safety Act by clicking here.

  • Anne A

    Like this – click here to ask your senators and representative to co-sponsor the Bike & Pedestrian Safety Act.

  • Anne A

    After the inspiring speech Anthony Foxx gave at the National Bike Summit just a week earlier, this news is disappointing at best.

  • Craig

    oooBooo

    A lot of statistics can be viewed from multiple angles to support multiple differing viewpoints. Common sense seems to dictate more people utilize stairs every day, injury free, than bike (I don’t have access to any data mind you). Factoriong in the actual time spent on the stairs (seconds per use I assume) versus time spent on the bike (minutes/hours per use) would probably change that conclusion (again no data, thought experiment here). So what then would be a meaningful interpretation of this “data” as far as characterizing the danger of stair walking versus biking?

    Also, you feel licensing is a way for the government to interfere with cycling? I would imagine you do not feel the government is interfering in driving by requiring licensing, correct? What is the fundamental difference between a cyclist on the public roadways (literaly the same roadway a car uses) and an automobile that makes licensing the car necessary but not the bike?

  • oooBooo

    The point is that there are many things which can cause ‘head injuries’ and cause more ‘head injuries’ than bicycling, but the people pushing foam hats leave those things alone. To justify a foam hat while bicycling means using it for many things.

    Licensing. What is licensing? It is a privilege granted to do something that is otherwise illegal. Those seeking that grant must meet whatever conditions the grantor demands. Licensing of everyday activities such as using the public way is a power grab. It’s probably always a power grab. Government used the invention of the automobile to grab a power that would not have been permitted to it otherwise. It started slow and progressed, using the repeated lie that driving is a privilege, to get people accept that government grants the privilege to drive. Now treated as such, government ties whatever it wants to that grant.

    license to use a bicycle? That will come much further along in the war on cars, perhaps after the private passenger automobile is turned back into a toy for the wealthy. It will be key to continue pitting drivers and former drivers against bicyclists politically. First bicycling will be licensed and then over time it will follow the private passenger automobile into oblivion for regular people. It represents too much freedom to be allowed, but for right now, it is needed in the war on driving. The reasoning for its elimination will be under government medical care that the injuries are too expensive for society. Much like government medical care will be used as a political weapon against driving and many other activities.

  • Craig

    Not sure how government medical care relates but interesting comments.

    I know this about helmets, I’d rather have one on in a crash than not. You could say that is personal preference. However as some accidents involving cyclists have the potential to turn into legal proceedings against others (individuals or governmental agencies) in the pursuit of monetary damages, it then starts to become less of a personal choice and more of an issue which affects a wider audience. Mandating helmet use would seem to not only reduce the risk of injury to the individual rider, but also the risk of monetary losses to others (e.g. the public in general) in an subsequent suit which may or may not take the form of long term medical care. I’m no lawyer, but that is my layman’s interpretation of why helmet’s could/should be mandated on cyclists as they are for motorcyclists here in California. For automobile drivers, there’s an argument for them (race car drivers certainly use them) but there’s enough other safety protections in place in most 4 wheeled vehicles to reasonably justify their non-use for the vast majority of use cases.

    I don’t think of licenses as being mostly about restricting access to something, but perhaps you have some valid points there. Isn’t some of the purpose of licensing to ensure that when many people share a common resource, they do so in a manner that is consistent with others? Part of that would be education, to ensure that everyone understands “the rules of the road” and is capable of following them (e.g. a driving test). And part of that is enforcement to ensure that those who disobey the agreed upon rules are penalized and/or restricted from further use until they agree to “play nice” with everyone else. If not, the actions of one or more rogues would seem to impede the ability of everyone else to use that resrouce (e.g. the roads). That could be direct (e.g. rogues run lights and actually cause accidents to others who expected compliant behavior) or indirectly (e.g. people refrain from using the roads because they fear encounters with those rogues).

    That’s what I see as a primary reason why drivers are licensed. I certainly wouldn’t want to live in a densely populated city where people just bought a car and started driving without any training, or requirement to follow driving rules. Although that is the case with cyclists now, it seems its “working” for the most part because the number of cyclists is relatively low (at least in the US).

    In that sense, I see any user of a road cyclist or otherwise should also be licensed. They should all be following the same set of rules, so that everyone can coexist. Aren’t cyclists today required to follow the same rules of the road as a car, even without the licensing?

    Note pedestrians don’t really use roads, they use sidewalks so I’d say there’s enough of a distinction there to keep this argument from extending to a “license to be a pedestrian” which I hope we both agree is ridiculous.

  • oooBooo

    Government medical care relates in that it is a lever of power. Anytime costs are socialized the government can use that as a lever to control individuals.

    What is called a bicycle helmet is not a helmet IMO. A helmet is what motorcyclists and race drivers wear. It is an entirely different animal. Bicycling has foam hats. It shares more with the packing your computer came in than it does with a real motoring safety device called a helmet.

    Foam hats don’t have much of a rating. At my height, if were to choose to wear a foam hat while bicycling, I would logically then need to choose to wear one pretty much 24/7. A foam hat isn’t going to save me from a CTA Bus or a Buick, it’s going to maybe help a little if I slip and fall, a little because I am taller than what they are rated for. Thus I should wear one in the shower. I should wear one while walking to the store in winter. I should wear one climbing stairs, I should wear one pretty much all the time if I should wear one when bicycling. But making our own decisions is becoming more and more not allowed in the unfree US of A.

    People shared roads for centuries prior to drivers’ licensing. They shared roads in crowded and dense cities. They knew and followed the conventions and rules. Reckless people were dealt with appropriately. They used these roads with dangerous horse powered vehicles.

    Furthermore, simple observation shows that motorists just use a hand-me-down notion of the rules rather than any serious study of them. Licensing effectively has little or nothing to do with competence or knowledge.

  • neroden

    You’re a whackaloon. Basically every country in the world has gone ahead with government medical care, because there’s no other sane way to provide it. The only alternative is for you to get no medical care based on arbitrary, capricious, and random variables.
    Of course, only the US chose to require people to buy medical care from private conglomerates. Most countries just fund medical care, the way the government funds parks and libraries.

  • oooBooo

    Name calling. How sweet of you.
    Look at the UK for a prime example of how medical costs drive new laws.
    The USA has had a corporatist/cartel/fascist medical system since the Flexner report was acted upon. What form did you expect it to take?