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Safety Recommendation Details

Safety Recommendation H-14-027
Synopsis: On May 28, 2013, about 1:59 p.m., a 2003 Mack Granite three-axle roll-off straight truck, operated by Alban Waste, LLC, was traveling northwest on a private road in Rosedale, Maryland, toward a private highway–railroad grade crossing. The grade crossing consisted of two tracks and was marked on each side with a crossbuck sign. The truck was carrying a load of debris to a recycling center located 3.5 miles from the carrier terminal. About the same time, a CSX Transportation Company (CSXT) freight train—which consisted of two locomotives, 31 empty cars, and 14 loaded cars—was traveling southwest at a recorded speed of 49 mph. As the train approached the crossing, the train horn sounded three times. The truck did not stop; and as the train traversed the crossing, it struck the truck on the right side, causing the truck to rotate and overturn before coming to rest on the earthen embankment on the northwest side of the tracks. The first 15 cars of the 45-car train derailed.
Recommendation: TO THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION: Require a full compliance review of new entrants that fail their safety audits, fail their corrective action plans, or are issued expedited action letters.
Original recommendation transmittal letter: PDF
Overall Status: Open - Unacceptable Response
Mode: Highway
Location: Rosedale, MD, United States
Is Reiterated: Yes
Is Hazmat: No
Accident #: HWY13MH013
Accident Reports: Highway-Railroad Grade Crossing Collision
Report #: HAR-14-02
Accident Date: 5/28/2013
Issue Date: 10/22/2014
Date Closed:
Addressee(s) and Addressee Status: FMCSA (Open - Unacceptable Response)

Safety Recommendation History
From: NTSB
Date: 12/6/2017
Response: We note that the January 22, 2014, “Patterns of Safety Violations” final rule; the March 4, 2015, “Review and Concurrence Corrective Action Plans” policy memorandum; and the October 20, 2015, “Phase II: Patterns of Safety Violations by Motor Carrier Management” enforcement policy memorandum gave you further authority to address new entrant safety compliance. Our Palm Springs, California, investigation, however, uncovered shortcomings in your compliance program oversight. By not reviewing the carrier’s (Tri-State Collision LLC) compliance after its failed new entrant safety audit or during the 3-year period during which there was an alert in the behavior analysis and safety improvement category of its HOS compliance, you missed an opportunity to help the carrier improve its safety regulation compliance or to remove its operating authority because of safety deficiencies. Accordingly, Safety Recommendation H-14-27 was reiterated in our report on the 2017 Palm Springs motorcoach and combination vehicle collision, and remains classified OPEN--UNACCEPTABLE RESPONSE.

From: NTSB
Date: 11/21/2017
Response: -From the NTSB Highway Safety Report HAR-17-04 “Motorcoach Collision With Combination Vehicle After Traffic Break on Interstate 10 Palm Springs, California, October 23, 2016.” Adopted October 31, 2017 and issued November 21, 2017: 2.5.2 FMCSA Oversight of Tri-State Collision Since 2003, the FMCSA has been required to conduct safety audits of all new interstate motor carriers. The FMCSA is required to conduct the new entrant safety audit within 18 months of a carrier’s receiving provisional approval of operating authority.84 Tri-State Collision began operating as a new interstate freight-carrying motor carrier in May 2010. The FMCSA conducted a new entrant safety audit of the carrier in September 2011. During the safety audit, the FMCSA discovered that Tri-State Collision had not established drug and alcohol testing procedures and had inadequate record-keeping, which are deficiencies frequently found in new entrant safety audits. When a carrier fails the new entrant safety audit, the FMCSA issues a warning letter informing the carrier that, unless it acts within 60 days to remedy its safety management practices, the FMCSA will revoke its operating authority. Tri-State Collision submitted its corrective action plan to the FMCSA on October 11, 2011. The FMCSA approved the action plan but never conducted a follow-up inquiry to determine whether Tri-State Collision had implemented the plan. The regulations do not require the agency to conduct a compliance review on a carrier that fails the new entrant safety audit. The FMCSA did not conduct any type of compliance review on Tri-State Collision until after this crash. During the postcrash review, the FMCSA found two critical violations. As a result of the review, Tri-State Collision received a “conditional” safety rating and retained its operating authority. One of the critical violations cited in the postcrash compliance review was for “making or permitting a driver to make a false report regarding duty status”; this is the requirement that the truck driver violated in the days before the crash. Moreover, Tri-State Collision had had its HOS compliance BASIC in alert status since August 2013. It is disconcerting that the FMCSA never conducted a compliance review of Tri-State Collision, despite this longstanding alert in the HOS compliance BASIC and its failed new entrant safety audit. Following a 2013 crash in Rosedale, Maryland, in which a roll-off truck was struck by a train on a grade crossing, the NTSB issued a recommendation to the FMCSA pertaining to new entrant safety audits (NTSB 2014). The roll-off truck in the Rosedale crash was operated by a new carrier that had a pattern of multiple safety deficiencies. As a result, the NTSB issued the following recommendation to the FMCSA: Require a full compliance review of new entrants that fail their safety audits, fail their corrective action plans, or are issued expedited action letters. (H-14-27) The FMCSA responded that, due to its limited resources, it would continue relying on Safety Measurement System data to prioritize for compliance reviews those motor carriers that demonstrate the highest safety risk, and it planned no further action on this recommendation. As a result, the NTSB classified Safety Recommendation H-14-27 “Open?Unacceptable Response.” The FMCSA’s new entrant safety program was ineffective in establishing and maintaining Tri-State Collision as a safe motor carrier. The NTSB concludes that by not conducting a compliance review of the carrier Tri-State Collision after its failed new entrant safety audit or during the 3-year-long period during which it had an alert in its BASIC of HOS compliance, the FMCSA missed an opportunity to help the carrier improve its compliance with safety regulations or to remove its operating authority because of safety deficiencies. Therefore, the NTSB reiterates Safety Recommendation H-14-27 to the FMCSA.

Date: 9/6/2017
Response: -From Michael Jordan, Strategic Planning and Program Evaluation Division, Federal Motor Carrier Safety Administration: Report: Investigation - Rosedale, Maryland (2013-05-28) Current Classification: Open - Unacceptable Response Requested Classification: Open - Acceptable Response • On January 22, 2014, FMCSA published its Patterns of Safety Violations final rule (79 FR 3520; see attached) enabling FMCSA to suspend or revoke the operating authority of for-hire motor carriers that: o Show egregious disregard for safety compliance; o Permit persons who have shown an egregious disregard for safety to exercise controlling influence over their operations; or, o Operate multiple entities under common control to conceal noncompliance with the safety regulations. • The Patterns of Safety Violations final rule also allows FMCSA to assess civil penalties against for hire motor carriers for engaging in such conduct as outline above. The final rule authorizes both suspension and revocation proceedings; however, in an October 20, 2015, FMCSA Enforcement policy memorandum, Phase II: Patterns of Safety Violations by Motor Carrier Management (MCECE-2015-0006; see attached), FMCSA will pursue revocation of operating authority. • On December 16, 2014, the consolidated and Further Continuing Appropriations Act, 2015, PL 113-235 (Act) was signed and directed FMCSA to send notices of EA violations that require written response, by certified mail, registered mail, or another manner of delivery, which records the receipt of the notice by the persons responsible for the violations. On March 31, 2015, following consideration of the Act’s requirement, FMCSA chose to suspend enforcement of the EA provision in 49 CFR 385.308 that required New Entrants to submit written responses per policy, Suspension of the Requirement to Submit a Written Response Demonstrating Corrective Action for New Entrant Expedited Actions (MC-ECS-2015-0002; see attached). • On March 4, 2015, FMCSA’s Enforcement Office published a policy memorandum, Review and Concurrence Corrective Action Plans (MC-ECS-2015-0001; see attached), that: o set out consolidated New Entrant Corrective Action Plan (CAP) policies into a single location; o clarified what constitutes acceptable corrective action; and, o outlined the standard for processing a CAP. • The Review and Concurrence Corrective Action Plans policy memorandum applied best practices and lessons learned to improve the table of acceptable CAP documentation and the processing of CAPs, in addition to reiterating that a New Entrant carrier that fails the safety audit, or receives an expedited action (EA) notice, must submit a complete and acceptable CAP to the FMCSA, with a specified time period. If the carrier did not submit a CAP, or if a submitted CAP was not acceptable, then the carrier’s New Entrant registration will be revoked and the company will be placed out-of-service and not be allowed to operate in interstate commerce. • Once a motor carrier has successfully navigated the CAP process and is allowed to operate, FMCSA has a robust prioritization system in place through ACE to monitor all motor carriers post audit/investigation and identify those carriers in need of further investigation. Since it is a data driven system carriers who fail to adequately implement their CAPs will be identified through violations identified roadside. Additionally, ACE allows for a system of notifications to be set so that Divisions can be notified if carriers exceed thresholds established outside of normal prioritization. • FMCSA requests NTSB upgrade the classification for safety recommendation H-14-027 to “Open- Acceptable Response.”

From: NTSB
Date: 11/12/2015
Response: We understand that you prioritize actions to maximize the effectiveness of your staff resources; however, in our investigation of the Rosedale, Maryland, crash, we found that that the current allocation of resources could not detect the consistent and serious pattern of noncompliance of the new entrant carrier with the Federal Motor Carrier Safety Regulations (FMCSR), from the time that the new entrant registered as a carrier until the crash. Our investigation further found that, although you were aware of problems that had existed with the carrier since November 2011, you had not taken adequate steps to ensure that the carrier complied with the FMCSR or, failing that, to prevent the carrier’s continued operation. Accordingly, we urge you to reconsider your position on this recommendation, revising your priorities to provide stronger oversight of new entrants to ensure that carriers address safety deficiencies in a timely fashion and are swiftly placed out of service if they fail to improve. Pending such action, Safety Recommendation H-14-27 is classified OPEN—UNACCEPTABLE RESPONSE.

Date: 4/1/2015
Response: -From T.F. Scott Darling, III, Chief Counsel: The FMCSA conducts, with the support of its State partners, approximately 17,000 compliance reviews and 33 ,000 safety audits each year. Implementing safety recommendation H- 14-27 would require the FMCSA to conduct more than I 0,000 additional full compliance reviews annually. Each year, there are approximately 8,200 new entrants that fail their safety audit and about 6,800 submit corrective action plans. Additionally, FMCSA issues approximately 3,500 expedited action letters that require a corrective action plan based on roadside inspections or by other activity. FMCSA thoroughly reviews the corrective action plans to ensure the management practices described and supported by required documentation demonstrate the motor carrier's ability to meet the safety standards. FMCSA staff also review recent on-road safety performance data to evaluate whether new or continued safety problems occurred since the safety audit. FMCSA will revoke any new entrant's registration and issue an out-of-service order if a response demonstrating an acceptable corrective action is not provided or deemed acceptable in accordance with §385.319. FMCSA placed 17,978 new entrants out-of-service in fiscal year 2014 for failing a safety audit or expedited action without an acceptable corrective action plan, or for refusal to submit to a safety audit. FMCSA prioritizes its limited resources to reach motor carriers demonstrating the highest safety risk. This safety recommendation would increase FMCSA's workload by approximately 60 percent, without increasing the personnel resources necessary to implement such an action. In order to implement NTSB's safety recommendation, the Agency would need to pull investigators and other staff off their current assignments. The safety recommendation is thus contrary to the FMCSA's approach to investigative assignn1ents where the Agency is using the abundance of data from various systems to direct investigative resources, expanding the use of focused reviews, taking a more dynamic approach to risk management and prioritization, and implementing a nationwide and consistent review and evaluation program. FMCSA continues to believe that its risk-based approach to prioritizing investigations through the use of Safety Measurement System data is the most effective use of our limited resources. Based on the information provided above, FMCSA plans no further action specific to the recommended action and respectfully requests that NTSB classify safety recommendation H-14-27 as "Closed- Acceptable Action."