FMCSA to test process for determining crash preventability
The Federal Motor Carrier Safety Administration announced July 7 that it plans to conduct a two-year demonstration program to determine whether certain crashes – those that FMCSA deems as generally “less complex” – are non-preventable and, therefore, should not be counted against a motor carrier’s safety record.
Crash preventability has been a major bone of contention between the trucking industry and the agency since the federal government first began making SafeStat scores public nearly two decades ago. For example, nearly 15 years ago then-FMCSA Administrator Joseph Clapp pledged that the agency would begin assessing preventability and removing non-preventable crashes in a matter of months. A few months later, the agency acknowledged that it could not do so given the huge volume of crashes that would need to be reviewed. In 2014, for example, more than 164,000 DOT-recordable crashes were reported in FMCSA’s Motor Carrier Management Information System.
Scope of crashes covered
FMCSA’s proposed program would allow carriers to file requests for data review (RDRs) of the preventability of certain crashes under the DataQs system. However, unlike the normal DataQs process which relies on individual states, RDRs regarding crash preventability would go to a group of reviewers under FMCSA’s direct supervision. The public, including carriers and drivers, would be allowed to seek review of the RDR decision using the DataQs system. In a draft Federal Register notice, FMCSA said it has not yet determined whether reviews would be conducted by a dedicated group of FMCSA staff or by a third party under contract to the agency.
The crashes covered by the program fall into two broad categories – those where another driver was convicted of certain specific offenses and those involving single-vehicle accidents under certain limited conditions. A crash would be considered not preventable if documentation established that a commercial motor vehicle (CMV) was struck by a motorist who was convicted of one of four offenses or a related offense:
Driving under the influence;
Driving in the wrong direction
Striking the CMV in the rear
Striking the CMV while it was legally stopped
For these crashes, the RDR would have to include evidence of a conviction as defined in 49 CFR 383.5 and 390.5 as well as all available law enforcement reports, insurance reports from all parties involved in the crash and other relevant information.
Carriers also could submit RDRs through DataQs when the crash did not involve other vehicles in certain situations, such as crashes in which an individual committed suicide by stepping or driving in front of the vehicle; the vehicle was incapacitated by an animal in the roadway; or the crash was the result of an infrastructure failure.
In these single-vehicle cases, FMCSA said that the RDR must present sufficient evidence that the CMV driver took reasonable action to avoid the crash and did not contribute to the crash. As an example, FMCSA said that if the CMV hit an animal but the driver was speeding or talking on a cell phone at the time, the crash would be deemed preventable.
Possible RDR outcomes
FMCSA proposes three possible decisions on a crash preventability RDR:
Not Preventable – The crash is removed from SMS.
Preventable – The crash is not removed from SMS for purposes of calculating the Crash Indicator BASIC percentile. However, FMCSA said it is considering options for weighting these crashes based on crash severity or possibly assigning a higher weighting if a crash has been reviewed and deemed preventable. Also, FMCSA plans to retain its current practice that deems any crash as preventable if the carrier, vehicle or driver was in violation of an out-of-service order at the time of the crash.
Undecided – The documentation submitted did not allow for a conclusive decision. The crash remains in SMS, and the severity weighting is unchanged. Preventable and Undecided crashes would be so designated on FMCSA’s website.
As is the case under DataQs today, any intentionally false or misleading statement, representation, or document provided in support of an RDR may result in prosecution and could be punishable by a fine of not more than $10,000 or imprisonment for not more than 5 years, or both.
A notice of the proposed program will be published soon in the Federal Register for 60-day public comment. Separately, FMCSA will publish in the Federal Register a notice regarding comments on a crash-weighting analysis it published in January 2015. For a copy of the notice regarding the demonstration program, click here. For a copy of FMCSA's responses to comments on the crash-weighting analysis, click here. Links to both documents in draft form as well as answers to frequently asked questions can be found at http://bit.ly/CrashPrevent. Once published, the Federal Register notices will be placed into an existing docket that already includes the results of FMCSA’s research on crash weighting and comments on that research. To view that material, visit http://bit.ly/CrashWeight.
Throughout the demonstration program, FMCSA will be collecting data on RDRs, decisions and the carriers that participate in the demonstration program in order to determine:
The cost of operating the test;
Future crashes of carriers that submitted RDRs;
Future crash rates of motor carriers with preventable crashes; and
Impacts to SMS crash rates.
FMCSA said the analysis will be used to examine the contention that crashes of these types are not the responsibility of the motor carrier to inform future policy decisions.
Section 5225 of last year’s Fixing America’s Surface Transportation Act (FAST Act) requires the agency to task the Motor Carrier Safety Advisory Committee (MCSAC) with reviewing the treatment of preventable crashes under the Safety Measurement System (SMS). But FMCSA’s Federal Register notice makes no mention of MCSAC, so it is unclear what role that entity will play in the program. The FAST Act gives FMCSA until December 2016 to task MCSAC with such a review, however.