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Safety Recommendation Details

Safety Recommendation H-11-027
Synopsis: On Friday, March 26, 2010, about 5:14 a.m. central daylight time, near Munfordville, Kentucky, a 1999 Freightliner truck-tractor in combination with a 1998 Strick Corporation 53-foot-long van semitrailer, owned by the motor carrier Hester, Inc., and being driven by a 45-year-old male, was traveling south on Interstate 65 (I-65) near milepost 61.5. The truck departed the left lane of southbound I-65 at a shallow angle and entered the 60-foot-wide depressed earthen median between the southbound and northbound roadways. The truck traveled across the median and struck and overrode the high-tension, four-cable, alternating-post median barrier adjacent to the left shoulder of northbound I-65. It then crossed the left shoulder and entered the travel lanes of northbound I-65. At that time, a 2000 Dodge 15-passenger van, driven by a 41-year-old male and occupied by 11 passengers, was traveling northbound in the left lane. As the truck crossed in front of the van, its tractor was struck by the van. The van rotated clockwise and became engaged with the truck’s trailer; the two vehicles continued across both travel lanes and the right shoulder of northbound I-65. As the truck and van traveled across the right shoulder, the van separated from the truck, struck the cut rock wall beyond the shoulder, and rebounded back into the travel lanes, coming to rest in the left lane of northbound I-65, facing south. The truck’s tractor struck the cut rock wall, and the vehicle rolled onto its right side. As the truck came to rest across both northbound lanes, a fire ensued that destroyed the tractor and the sides and roof of the semitrailer. As a result of the accident and subsequent truck fire, the truck driver, the van driver, and nine van passengers died. Two child passengers in the van, who were using child restraints, sustained minor injuries. The National Transportation Safety Board (NTSB) determined that the probable cause of this accident was the truck driver’s failure to maintain control of the truck-tractor combination vehicle because he was distracted by use of his cellular telephone. Contributing to the severity of the accident were a median barrier that was not designed to safely contain or redirect the heavy vehicle and the lack of adequate guidance to the states in the form of high-performance median barrier warrants. One issue that the NTSB identified during its investigation was the need to provide objective warrants, rather than general guidelines, for the application of median barriers. This issue area has elements that concern the Federal Highway Administration (FHWA).
Recommendation: TO THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION: Apply the vetting criteria of the New Applicant Screening Program to the information submitted by all new entrant motor carriers.
Original recommendation transmittal letter: PDF
Overall Status: Closed - Acceptable Action
Mode: Highway
Location: Munfordville, KY, United States
Is Reiterated: No
Is Hazmat: No
Accident #: HWY10MH011
Accident Reports: Truck-Tractor Semitrailer Median Crossover Collision With 15-Passenger Van
Report #: HAR-11-02
Accident Date: 3/26/2010
Issue Date: 10/4/2011
Date Closed: 7/12/2012
Addressee(s) and Addressee Status: FMCSA (Closed - Acceptable Action)

Safety Recommendation History
From: NTSB
Date: 7/12/2012
Response: The NTSB notes that the FMCSA applies its NAS tool to all new entrant motor carrier applications. We further note that the FMCSA has completed rulemaking to strengthen its vetting efforts and to address successor liability, and we commend the agency for its continued efforts to refine its motor carrier vetting processes. The FMCSA’s efforts satisfy Safety Recommendation H-11-27, which is therefore classified CLOSED—ACCEPTABLE ACTION.

Date: 3/28/2012
Response: -From Anne S. Ferro, Administrator: The FMCSA is committed to ensuring that only safe carriers are permitted to operate on our Nation's highways. The Agency is taking steps to identify applicants for operating authority that may be reincarnated or chameleon-informal terms used to describe a motor carrier that attempts to operate as a different entity under a new USDOT number in an effort to evade prior enforcement action, unsafe compliance history, and/or out-of-service orders issued against it by the Agency. The Agency acknowledges the NTSB's concerns about new entrant motor carriers but we do not believe a blanket approach of applying the criteria from the Operating Authority Vetting Program to all new entrant motor carriers would maximize the safety achievable with current Agency resources. Also, because the vetting program involves significant resources from FMCSA and the Agency's State partners, the use of Federal and State resources to conduct a full vetting investigation on each new entrant application should not be the primary strategy to detect attempts at reincarnation, at this time. The FMCSA's current approach of using the New Applicant Screening (NAS) tool for each new entrant motor carrier, coupled with the targeted use of other vetting program investigative techniques for new entrant passenger and HHG carriers for which past enforcement experience has demonstrated the need for increased oversight to detect efforts at reincarnation, is an effective alternative to the NTSB's recommendation. The NAS tool is used to match information in operating authority applications against information related to carriers across the entire population of motor carriers currently or previously registered with the Agency. FMCSA recently expanded the NAS tool to include a check against the Agency's entire past and present carrier population. The updated NAS now provides the ability to search for specific carriers and identify relationships to other past and present carriers. These enhancements were implemented on December 1, 2011. The FMCSA has implemented the Operating Authority Vetting Program to identify unsafe bus/motorcoach and HHG moving companies that may try to reinvent themselves to avoid compliance and/or fines. The vetting group is tasked with the responsibility of ensuring that applications for interstate HHG or passenger operating authority are accurate and complete-not from unsafe carriers attempting to evade enforcement-and from applicants that are fit, willing, and able to comply with FMCSA's rules and regulations. The group carefully reviews operating authority applications for conformity with FMCSA's safety fitness policy. In addition, the vetting process allows FMCSA to discover certain reincarnated or chameleon motor carriers before such carriers are authorized to engage in for-hire interstate transportation. Upon receipt of an application for passenger carrier or HHG operating authority, FMCSA suspends the application until the entire vetting process is complete. If the review indicates that the applicant may be either reincarnated or otherwise not fit, willing, and able to comply with the applicable statues and regulations, further investigation is initiated. At the same time, FMCSA contacts State agencies such as the Secretary of State, Department of Motor Vehicles, Public Service Commission, and other State agencies that register or regulate the passenger and HHG motor carrier industries. If the carrier's responses and other Agency-obtained data demonstrate that the "new" carrier is, in fact, a successor to a previously registered carrier that demonstrated an inability or unwillingness to comply with the application statues and regulations, the Agency will reject the application. The Agency has initiated a rulemaking to strengthen its vetting efforts and address to the greatest extent possible, under existing statutes, successor liability. On December 13, 2011, FMCSA published a Notice of Proposed Rulemaking proposing to amend its Rules of Practice for Motor Carrier, Intermodal Equipment Provider, Broker, Freight Forwarder, and Hazardous Materials Proceedings in three respects. First, the Agency proposes to clarify that paying the full proposed civil penalty in an enforcement proceeding, either in response to a Notice of Claim or later in the proceeding, would not allow respondents to unilaterally avoid an admission of liability for the violations charged. Second, FMCSA proposes to establish procedures for issuing out-of service orders to motor carriers, intermodal equipment providers, brokers, and freight forwarders it determines are reincarnations of other entities with a history of failing to comply with statutory or regulatory requirements. These procedures would provide for administrative review before the out-of-service order takes effect. Finally, the Agency proposes procedures for consolidating Agency records of reincarnated companies with their predecessor entities. Reincarnated carriers have been a challenge for Federal and State regulators and police; however, the Agency believes the measures put into place will further prevent chameleon carriers from entering into the system under a new DOT number. Based on the reasons cited above in safety recommendation H-I 1-27, FMCSA respectfully requests that NTSB classify the safety recommendation "Closed-Acceptable Action."