The U.S. Government Accountability Office has found shortcomings in how the Federal Highway Administration oversees tests for guardrails and other roadside safety equipment and recommended several changes, including better monitoring and oversight of states’ policies and progress in using newer crash-test standards and providing more guidance to crash-test laboratories to ensure the independence of their tests.

In a report released on July 7, GAO noted that implementation of states’ phased-in conversion to a 2009 crash-test standard from a 1993 standard “has been slow.”
It also said, “FHWA has not developed a plan to track progress of the states and industry in meeting the new [crash-test standard] dates.”

FHWA and the American Association of State Highway and Transportation officials earlier this year jointly issued a plan calling on states to put in place only roadside hardware that has passed tests under a 2009 Manual for Assessing Safety Hardware (MASH) standard. Earlier tests used a 1993 standard.

The rollout of the MASH provision is to be phased in between December 2017 and December 2019.

GAO added that because some equipment can stay in place for at least 20 years before being replaced, some hardware tested against the older standards “could be on the roads for years to come.”

The safety devices have been in the spotlight over the past couple of years because of controversy over one product, the ET-Plus guardrail end cap, manufactured by Dallas-based Trinity Industries. GAO said that “there have been a number of serious injuries and fatalities” in crashes into the ET-Plus. More than a dozen lawsuits have been filed against its manufacturer.

But that product wasn’t the subject of the GAO report. GAO said, “Because of ongoing litigation, we did not review any issues related to the accidents involving the ET-plus guardrail end terminal.”

Although FHWA policy says that all roadside safety equipment on the Interstates and other arterials should undergo crash tests, states’ federal highway funding isn’t contingent on carrying out such tests, GAO says. According to the report, FHWA officials say there is no statutory or regulatory requirement for crash tests, so they cannot withhold federal funds from a state that doesn’t use the tests.

But GAO also observed that that the vast majority of states—43 of the 44 state agencies that responded to its survey—said they require crash-testing roadside safety equipment using the MASH or earlier standards.

GAO also focused on the labs that administer crash tests. The report found “there is an inherent potential threat to independence in the testing process because employees in some labs can test devices that were developed within their parent organizations.” GAO said six of the nine labs it reviewed can test equipment developed within their parent organizations.

Among its recommendations, GAO said FHWA should help ensure that states have written policies to require crash-tested safety hardware on Interstates and other arterials and also said the agency should  address any inconsistencies among states on the issue.

GAO also called for the agency to monitor and report on progress in converting to the MASH crash-test standards,

Other recommendations for FHWA include providing guidance to labs to make sure they clearly separate equipment development and crash tests and develop a plan for third parties to verify lab tests results.

In a written response to the GAO report, FHWA said it concurs with all of the report’s recommendations. The agency also has commissioned a report by the U.S. Dept. of Transportation’s Volpe National Transportation Systems Center to examine its oversight of guardrails and other equipment and to recommend changes. FHWA expects to receive the report later this summer.

FHWA spokesperson Neil Gaffney said in an emailed statement that the agency has made improvements in the process for determining whether the hardware will receive letters describing their crashworthiness. He also said FHWA has worked with states to speed the shift to new safety equipment and has asked labs and equipment makers for additional financial disclosure.

Gaffney added,  “Further, we will work to implement the GAO’s recommendations to strengthen the independence of the testing labs and develop a process for third-party review of crash-test results.”

U.S. Sen. Richard Blumenthal (D-Conn.) said in a statement that the GAO study “paints a picture of an agency adrift—failing to ensure these devices are enhancing safety, not undermining it.”

Blumenthal, one of six senators who requested the GAO report, said he plans to work on legislation “so this troubled agency may be reformed and righted once and for all.”

A federal district court in June 2015 entered a judgment of $682.4 million against Trinity in a lawsuit that alleged False Claims Act violations. Trinity said in a February 2016 filing with the Securities and Exchange Commission that the “allegations are without merit.” The company also has appealed the district court’s decision to a federal appellate court and said it “is vigorously pursuing a reversal” of the 2015 judgment.

It said that about a dozen other ET-Plus-related lawsuits are pending.

Moreover, Trinity said that on April 28, 2015, it received a federal grand jury subpoena from the U.S. Dept. of Justice, seeking documents related to the ET-Plus and another guardrail end cap model. It said it “is cooperating with this request.”

In March 2015, FHWA said the ET-Plus had passed a set of crash tests carried out in January.

Trinity said in the SEC filing that it believes 36 states and the District of Columbia had removed the ET-Plus from their “qualified products” lists.