Warner, Kaine join group asking GAO to investigate guardrail safety

NORFOLK -- Senators Mark Warner (D-VA) and Time Kaine (D-VA) have signed onto a letter to the Government Accountability Office asking the agency to investigative the process currently used to approve roadside safety devices.

In the letter, the senators say their request to the GAO--an independent agency commonly referred to as Congress' watchdog--was prompted by the ongoing controversy surrounding a once-popular guardrail that critics have called unsafe.

The Trinity ET-Plus has come under fire after it was revealed the company that makes the guardrail end terminal made changes to the product's design. The changes narrowed the terminal's width and compacted other internal measurements, making it harder for the guardrail to ribbon out when its hit by a car. Instead, the guardrail locks up and spears through a vehicle.

"In recent months, we have witnessed a host of troubling developments that call into question the safety of certain roadside devices known as highway guardrail end terminals," the letter reads. "In October 2014, a federal jury in Texas returned a $525 million verdict against a manufacturer of these devices who was alleged to have altered their specifications without notifying federal authorities. Since then, dozens of states have suspended installation of these devices on their roads. Some experts have voiced concerns about the devices as well."

In the wake of the multimillion dollar jury verdict in the federal whistle blower lawsuit, the Federal Highway Administration ordered Trinity Industries--who makes the ET-Plus--to conduct new tests on the end terminal. So far, the company has released results of the first four tests, which federal regulators said passed. Results from the second four tests have not been released but some experts have said at least one of the tests likely failed.

The letter is signed by a total of six senators. In addition to Warner and Kaine, the letter is also signed by Senator Richard Blumenthal (D-CT), who is Ranking Member on the Senate Commerce Committee's Subcommittee on Consumer Protection, Product Safety, Insurance, and Data Security, and Senator Cory Booker (D-NJ), Ranking Member on the Commerce Committee's Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety and Security.

Some members of Congress--including Sen. Blumenthal--have already written the FHWA calling the tests' effectiveness into question. That sentiment was re-affirmed in the letter sent to the GAO.

"The developments over the past several months raise serious questions about the effectiveness of the current framework for evaluating the reliability and integrity of roadside hardware products, including guardrail end terminals," the senators write.

A number of organizations play a role in testing guardrails and approving their use in each state but the FHWA sets the tone by deciding whether or not it will reimburse states for installing a certain product. For instance, the ET-Plus remained on the FHWA's approved products list for years after a whistle blower first brought to light changes in the product's design. Several states, including North Carolina, have pointed to the fact that it remains on the list as the reason for not taking any steps to address concerns with the now-troubled guardrail.

"FHWA, as the guardian of federal taxpayer dollars, has a unique and vital role and responsibility in ensuring that roadside hardware has been properly vetted for safety purposes and is eligible for reimbursement with federal funds," the letter says.

The full text of the letter appears below:

Dear Mr. Dodaro:

The Federal Highway Administration (FHWA) disburses about $40 billion annually to states for projects to build, improve and maintain the nation's highways and bridges. These projects incorporate important safety features, including roadside safety hardware devices like reflectors, steel guardrails, sign posts, concrete barrier walls, and breakaway highway lighting poles, among other equipment critical to the safety of the traveling public. In recent months, we have witnessed a host of troubling developments that call into question the safety of certain roadside devices known as highway guardrail end terminals. In October 2014, a federal jury in Texas returned a $525 million verdict against a manufacturer of these devices who was alleged to have altered their specifications without notifying federal authorities. Since then, dozens of states have suspended installation of these devices on their roads. Some experts have voiced concerns about the devices as well.

We are committed to looking closely at this issue. As a group of senators that includes both the ranking member of the Senate Commerce Committee's Subcommittee on Consumer Protection, Product Safety, Insurance, and Data Security as well as the ranking member of the Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety and Security, we feel a particular responsibility to ensure that a strong and effective oversight regimen exists. The developments over the past several months raise serious questions about the effectiveness of the current framework for evaluating the reliability and integrity of roadside hardware products, including guardrail end terminals. Under the current oversight regimen, several parties are involved in setting safety standards and evaluating whether roadside hardware devices meet appropriate criteria. These entities include FHWA, the Transportation Research Board, the American Association of State Highway and Transportation Officials, research facilities, and device manufacturers. FHWA, as the guardian of federal taxpayer dollars, has a unique and vital role and responsibility in ensuring that roadside hardware has been properly vetted for safety purposes and is eligible for reimbursement with federal funds. We write requesting that GAO investigate the current framework, specifically addressing the following topics:

1. The role that FHWA is obligated to play in ensuring the safety and sufficiency of roadside hardware.

2. The role the agency actually plays in ensuring the safety and sufficiency of roadside hardware and whether and how this differs at all from the role the agency is required to play.

3. The regulatory process for developing standards for roadside safety hardware.

4. The respective roles that FHWA, other federal agencies, states, trade associations, research facilities, device manufacturers, and any other parties play in the development of safety standards.

5. The testing process for roadside safety hardware, including the thoroughness and transparency of the process.

6. The mechanisms in place to mitigate any actual or apparent conflicts of interest between entities with a commercial interest in roadside safety hardware and entities (a) developing standards and (b) testing roadside safety hardware.

7. The adequacy of government-maintained and publicly available information about the quantity and location of particular types of roadside safety hardware devices installed on public roads, as well as the performance of those devices.

8. Any additional actions that FHWA or Congress can take to ensure the safety and sufficiency of roadside safety hardware.

There may be many other issues you encounter in your study besides those we have laid forth above, and we urge you to pursue those as appropriate. Your efforts will help as we work to ensure that taxpayers can rest assured that federal dollars are only spent on safe, trustworthy and reliable products.

Sincerely,

RICHARD BLUMENTHAL

United States Senate

CORY BOOKER

United States Senate

EDWARD J. MARKEY

United States Senate

MARK WARNER

United States Senate

SHELDON WHITEHOUSE

United States Senate

TIM KAINE

United States Senate

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