FMCSA drops conviction requirement in crash review program

The Federal Motor Carrier Safety Administration announced that its planned crash preventability review pilot program will begin August 1 for crashes that occurred on or after June 1, 2017. Based on comments on its initial proposal for a pilot program, the agency has modified several key aspects of the program, including relaxing some of the documentation requirements and slightly expanding the list of crashes for which a carrier or driver could file a requests for data review (RDR) under the DataQs system. The purpose of the pilot program is to determine whether certain crashes should be included in a carrier's Crash Indicator Behavior Analysis Safety Improvement Category (BASIC) under the Safety Measurement System (SMS). Findings regarding preventability in the pilot program will not be used in any proceeding to determine a carrier's safety rating. In a Federal Register notice, FMCSA noted that the "vast majority" of commenters on the proposed pilot program opposed the agency's plan to require that carriers provide evidence of a conviction that another driver was responsible under the limited schedule of crashes that could be reviewed. "Reasons cited included the amount of time that courts take to adjudicate cases, and the fact that, when the other driver dies in the crash, there is no prosecution," FMCSA said, adding that some commenters also pointed out that courts determine fault, not preventability. Another area in which FMCSA relaxed the documentation requirements relates to the proposed requirement for all available law enforcement reports, insurance reports from all parties involved in the crash, and any other relevant information. Several commenters argued that receiving insurance reports from other parties is unlikely, so FMCSA will not require someone submitting a crash preventability RDR to include any specific documentation from third parties. However, the burden remains on the carrier or driver to establish by compelling evidence that a crash was not preventable. FMCSA also is explicitly allowing video evidence. Beginning August 1, DataQs will accept videos 5 MB or smaller in specific video container formats, including MP4, MPG, MKV, AVI, MPEG, and WMV file types for use in the demonstration program. Types of reviewable crashes In response to comments submitted, FMCSA added to the original list of not preventable crash scenarios to include crashes involving an unattended CMV that is legally stopped or parked, and crashes involving road debris or cargo from another vehicle. Many commenters proposed other scenarios, but FMCSA said those were "more complex and would require more analysis and probably generate less consistent findings." The crashes that may be reviewed using the RDR process during the demonstration program include:

1. When the CMV was struck by a motorist driving under the influence (or related offense);

2. When the CMV was struck by a motorist driving the wrong direction;

3. When the CMV was struck in the rear;

4. When the CMV was struck while it was legally stopped or parked, including when the vehicle was unattended;

5. When the CMV struck an individual committing or attempting to commit suicide by stepping or driving in front of the CMV;

6. When the CMV sustained disabling damage after striking an animal in the roadway;

7. When the crash was the result of an infrastructure failure, falling trees, rocks, or other debris; or

8. When the CMV was struck by cargo or equipment from another vehicle.

Preventability decisions An RDR can lead to one of three outcomes: Not preventable, Preventable and Undecided. FMCSA will handle each of these three outcomes as follows:

• Not Preventable - The public display of SMS will include a notation that reads, "FMCSA reviewed this crash and determined that it was not preventable." FMCSA, law enforcement users and carriers viewing their own data through the FMCSA Portal will see two Crash Indicator BASIC percentiles: One with the not preventable crashes and one without.

• Preventable – The public display of SMS will include a notation that reads, "FMCSA reviewed this crash and determined that it was preventable."

• Undecided - The documentation submitted did not allow for a conclusive decision by reviewers. When crash reviews are undecided, SMS will include a notation that reads, "FMCSA reviewed this crash and could not make a preventability determination based on the evidence provided."

In addition, if a submitter fails to provide documents requested by FMCSA, the RDR will be designated in DataQs as "Closed Due to Non-Response" without any notation in the public display of SMS. FMCSA had suggested it might increase the SMS weighting on crashes found to be preventable, but it was persuaded not to do so by comments that such a move would discourage carriers from participating in the program. Before FMCSA issues a final determination that a crash was not preventable, it will issue a notice of proposed determination, giving interested parties 30 days to provide any evidence to the contrary.