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Safety Recommendation Details

Safety Recommendation H-14-026
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: Modify Title 49 Code of Federal Regulations Part 392.82 to prohibit any use of a hands-free portable electronic device by a commercial driver’s license holder while the driver is operating a commercial vehicle, except in emergencies.
Original recommendation transmittal letter: PDF
Overall Status: Closed - Unacceptable Action
Mode: Highway
Location: Rosedale, MD, United States
Is Reiterated: No
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: 12/6/2017
Addressee(s) and Addressee Status: FMCSA (Closed - Unacceptable Action)

Safety Recommendation History
From: NTSB
Date: 12/6/2017
Response: We are disappointed that you decided not to pursue rulemaking to prohibit commercial vehicle drivers from using hands free portable electronic devices while operating commercial vehicles. Because you intend to take no further action to implement the recommended mandate, Safety Recommendation H-14-26 is classified CLOSED--UNACCEPTABLE ACTION.

Date: 6/20/2017
Response: -From Michael J. Jordan, USDOT/FMCSA MC-PRS, Strategic Planning and Program Evaluation: • FMCSA is aware of the current research and studies concerning the issue of distracted driving. • However, FMCSA’s position on the recommendation action has not changed since the initial response was submitted to the NTSB on April 1, 2015. • FMCSA plans no further action to implement the recommended rulemaking. • FMCSA requests NTSB close safety recommendation H-14-026.

From: NTSB
Date: 2/3/2017
Response: The National Transportation Safety Board (NTSB) has reviewed the National Highway Traffic Safety Administration (NHTSA) Notice of Proposed Federal Guidelines, “Visual Manual NHTSA Driver Distraction Guidelines for Portable and Aftermarket Devices” (Phase 2 guidelines), as published at 81 Federal Register 87656, December 5, 2016. The proposed guidelines provide for the use of portable electronic devices while driving by incorporating “pairing” with an existing in-vehicle interface that meets Phase 1 voluntary guidelines. If that is not feasible, NHTSA recommends that portable devices be designed to include a “driver mode” that meets glance time criteria and per se lockouts of distracting activities, as described in the Phase 1 guidelines. NTSB Investigations The April 2012 NTSB response to the Phase 1 guidelines included an overview of our work on distracted driving. Since that time, the NTSB completed the investigation of a bridge collapse near Mount Vernon, Washington, which found that the certified pilot/escort vehicle driver failed to perform required duties and to communicate potential hazards, due in part to distraction caused by cell phone use. Safety Recommendation H-14-13 requested that the states ban the nonemergency use of portable electronic devices use by pilot/escort vehicle drivers. In the investigation of another collision that occurred in May 2013, the NTSB found that a truck driver failed to ensure that railroad tracks were clear before traversing a highway railroad grade crossing in Rosedale, Maryland, due, in part, to distraction caused by a hands-free cell phone conversation. Safety Recommendation H-14-26 requested that the Federal Motor Carrier Safety Administration modify 49 Code of Federal Regulations 392.82 to prohibit any use of hands-free portable electronic devices by commercial drivers. These recommendations are consistent with our positions from earlier investigations (Safety Recommendations H-11-39 and H-11-47) requesting that the 50 states and the District of Columbia and industry (via CTIA The Wireless Association and the Consumer Electronics Association), respectively, prohibit the use of portable electronic devices while driving.

From: NTSB
Date: 11/12/2015
Response: Although we commend the actions you have taken to ban hand-held PED use by CDL holders while they are operating a CMV, we are disappointed that you plan no further regulatory action to ban hands-free PED use. The findings from previous accident investigations that we have conducted (the 2004 Alexandria, Virginia, motorcoach accident; the 2011 Munfordville, Kentucky, truck tractor semitrailer accident; and the Rosedale, Maryland, accident) all confirm the findings of research showing that drivers conversing on a cell phone?whether such a device is handheld or hands-free—are cognitively distracted from the driving task and pose a greatly increased risk for accidents on the highway. Accordingly, we urge you to reconsider your position on this recommendation. Pending such action, Safety Recommendation H-14-26 is classified OPEN—UNACCEPTABLE RESPONSE.

Date: 4/1/2015
Response: -From T.F. Scott Darling, III, Chief Counsel: FMCSA believes that safety recommendation H-14-26 is unreasonably broad in specifying "any use of a hands- free portable electronic device" and, therefore, cannot be implemented as written. Furthermore, FMCSA does not believe that sufficient data exist to justify a ban of both hand-held and hands-free mobile telephone devices from use by drivers operating CMYs in interstate commerce. On December 2 1, 20 I 0, based on available studies, FMCSA proposed restricting only hand-held mobile telephone use by CMV drivers. The Olson, et al. (2009) and Hickman, et al. (2010) studies found that "talking or listening to a hands-free phone" and "talking or listening to a hand-held phone" were relatively low-risk activities and included only brief periods when the drivers ' eyes were off the forward roadway. Studies have not determined definitively that merely talking on a mobile telephone while driving presents a significant risk. The use of a cell phone, however, involves a variety of sub-tasks that could initiate a safety-critical event. The Hickman study shows that reaching for or dialing a cell phone while driving increased the odds of involvement in a safety-critical event. However, the study also shows that the act of talking or listening on a hands-free cell phone while driving actually decreased the odds of involvement in a safety-critical event. Based on these studies, FMCSA determined that it is the action of taking one's eyes off the forward roadway to reach for and dial the mobile telephone that constitutes the high-risk activity. Reaching for and dialing a mobile telephone are both visual and manual distractions and reduce a driver's situational awareness, impact decision making or driving performance adversely, and increase the risk of a crash, near-crash, unintended lane departure by the driver, or other unsafe driving action. Therefore, because the reaching and dialing tasks are always necessary to use a hand-held mobile telephone, FMCSA restricted only hand-held mobile telephone use by CMV drivers while operating in interstate commerce in its final rule published on December 2, 2011. Enclosed is a copy of the final rule for your reference. More recent studies vary with respect to the overall effect on the increased safety-critical event risk of talking on a cell phone of any type while driving. FMCSA agrees that cognitive distraction is a safety risk; however, the Agency is not aware of avai !able data that exist to the level of precision necessary to support a rulemaking action, consistent with FMCSA's statutory duties to consider the costs and benefits of its rules, and with requirements of the Office of Management and Budget to provide adequate data on costs and benefits. FMCSA believes the actions taken in our 2011 final rule to restrict the use of hand-held mobile telephones by CMV drivers was sufficient to address the highest safety risk. FMCSA plans no further regulatory action to amend Title 49 CFR §392.82 to prohibit the use of a hands-free portable electronic device by a commercial driver's license (COL) holder while the driver is operating a CMV. Based on the information provided above, FMCSA respectfully requests NTSB classify safety recommendation H-14-26 as "Closed- Acceptable Action."