CASE STUDY #1 / In the relatively low-key format of its report on a specific accident, the NTSB made recommendations to the Federal Motor Carrier Safety Administration and Federal Railroad Administration that could be surprisingly consequential in the current legal context.

Hat tip to the Scopelitis Transportation Blog this past week.

First, the FMCSA is, controversially, pursuing its safety program called “CSA 2010”. Its Safety Measurement System – alongside SafeStat – has called into question the standards by which motor carriers and those who hire them will be judged on both compliance grounds and in vicarious liability litigation. See past comments abut CSA 2010 in this blog here and here. 

Into this fraught situation for motor carriers and brokers the NTSB in its report on a truck-tractor hauling two empty trailers and an Amtrak train in Nevada killing the truck driver, train conductor, and four passengers – and injuring 15 passengers and a crew member. Its recommendations begin at Page 64 of “National Transportation Safety Board. 2012. Report available here: “Highway–Railroad Grade Crossing Collision, US Highway 95, Miriam, Nevada, June 24, 2011. Highway Accident Report NTSB/HAR-12/03”

The NTSB’s recommendations directed to the Federal Motor Carrier Safety Administration are as follows

“As a result of its investigation of this accident, the National Transportation Safety Board makes the following recommendations: 

“To the Federal Motor Carrier Safety Administration: 

[1] “Create a mechanism to gather and record commercial driving-related employment history information about all drivers who have a commercial driver’s license, and make this information available to all prospective motor carrier employers. (H-12-54). 

[2] “Using the mechanism developed in Safety Recommendation H-12-54, require motor carriers to conduct and document investigations into the employment records of prospective drivers for the 10 years that precede the application date. (H-12-55). 

[3] “Require motor carriers to retrieve records from the Commercial Driver’s License Information System and the National Driver Register for all driver applicants so that they can obtain a complete driving and license history of prospective drivers. (H-12-56). 

[4] “Inform commercial vehicle inspectors of (1) the importance of taking pushrod stroke measurements within the specified pressure range, (2) the relationship between pushrod stroke and specific air pressure, and (3) the consequence of taking measurements outside of this range. (H-12-57).” 

Second, even a casual reading of this blog picks up on the frequency and volume of tort litigation relating to collisions at railroad grade crossings (see posts here, here, here, here, here, and here). Also, recently the Federal Railroad Administration proposed a rule to require railroads to inventory all railroad / highway crossings over which they operate (see post here). 

The NTSB’s recommendations directed to the Federal Railroad Administration are as follows

“As a result of its investigation of this accident, the National Transportation Safety Board makes the following recommendations: 

 

“To the Federal Railroad Administration: …

[1] “Work with the Federal Highway Administration to develop a model grade crossing action plan that can be used as a resource document by all states. At a minimum, such a document should incorporate information from US Department of Transportation publications, industry studies, and the American Association of State Highway and Transportation Officials, as well as the best practices and lessons learned at the conclusion of the 5-year grade crossing action plans developed in response to 49 Code of Federal Regulations 234.11, “State Highway–Rail Grade Crossing Action Plans.” (R-12-42). 

[2] “Work with the Federal Highway Administration to update its website on annual reporting requirements for railway–highway crossings, to include comprehensive information on the individual grade crossing action plans developed by the states pursuant to 49 Code of Federal Regulations 234.11, “State Highway–Rail Grade Crossing Action Plans.” (R-12-43).”