Federal Motor Carrier Safety Regulations; Regulatory Guidance Concerning Crashes Involving Vehicles Striking Attenuator Trucks Deployed at Construction Sites

T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
March 26, 2015

[Federal Register Volume 80, Number 58 (Thursday, March 26, 2015)]
[Rules and Regulations]
[Pages 15913-15914]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-06817]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 390


Federal Motor Carrier Safety Regulations; Regulatory Guidance 
Concerning Crashes Involving Vehicles Striking Attenuator Trucks 
Deployed at Construction Sites

AGENCY: Federal Motor Carrier Safety Administration, DOT.

ACTION: Regulatory guidance.

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SUMMARY: FMCSA provides regulatory guidance concerning crashes 
involving motor vehicles striking the rear of attenuator trucks 
deployed at construction sites and whether such crashes meet the 
definition of ``accident'' under 49 CFR 390.5 for the motor carrier 
that controls the attenuator truck. Attenuator trucks are highway 
safety vehicles equipped with an impact attenuating crash cushion 
intended to reduce the risks of injuries and fatalities resulting from 
crashes in construction work zones. The guidance explains that such 
crashes in which motorists strike the attenuator trucks while they are 
deployed at construction work zones are not covered by the definition 
of accident and such occurrences will not be considered by FMCSA under 
its Compliance, Safety, Accountability Safety Measurement System (SMS) 
scores, or Safety Fitness Determination for the motor carrier that 
controls the attenuator truck. This guidance will provide the motor 
carrier industry and Federal, State, and local law enforcement 
officials with uniform information for use in determining whether 
certain crashes involving attenuator vehicles must be recorded on

[[Page 15914]]

the motor carrier's accident register and considered in the Agency's 
safety oversight programs.

DATES: This guidance is effective May 26, 2015.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas L. Yager, Chief, Driver and 
Carrier Operations Division, Office of Bus and Truck Standards and 
Operations; 1200 New Jersey Ave. SE., Washington, DC 20590, Telephone 
202-366-4325, Email: MCPSD@dot.gov.

SUPPLEMENTARY INFORMATION: 

Legal Basis

    The Secretary of Transportation has statutory authority to set 
minimum standards for commercial motor vehicle safety. These minimum 
standards must ensure that: (1) CMVs are maintained, equipped, loaded, 
and operated safely; (2) the responsibilities imposed on operators of 
CMVs do not impair their ability to operate the vehicles safely; (3) 
the physical condition of operators of CMVs is adequate to enable them 
to operate the vehicles safely; (4) the operation of CMVs does not have 
a deleterious effect on the physical condition of the operators; and 
(5) an operator of a commercial motor vehicle is not coerced by a motor 
carrier, shipper, receiver, or transportation intermediary to operate a 
commercial motor vehicle in violation of a regulation. (49 U.S.C. 
31136(a)(1)-(5), as amended). The Secretary also has broad power in 
carrying out motor carrier safety statutes and regulations to 
``prescribe recordkeeping and reporting requirements'' and to ``perform 
other acts the Secretary considers appropriate.'' (49 U.S.C. 
31133(a)(8) and (10)).
    The Administrator of FMCSA has been delegated authority under 49 
CFR 1.87(f) to carry out the functions vested in the Secretary of 
Transportation by 49 U.S.C. chapter 311, subchapters I and III, 
relating to commercial motor vehicle programs and safety regulation.
    This document provides regulatory guidance to the public with 
respect to the definition of ``accident'' in 49 CFR 390.5 of the 
Federal Motor Carrier Safety Regulations (FMCSRs), and the recording of 
accidents as required under 49 CFR 390.15. All interested parties may 
access the guidance in this document through the FMCSA's Internet site 
at http://www.fmcsa.dot.gov.

Background

    The regulatory guidance in this regulatory guidance responds to 
questions concerning the definition of ``accident'' in 49 CFR 390.5: 
Are crashes in which motorists strike the rear of attenuator trucks 
deployed at construction sites considered recordable accidents?
    Section 390.5 defines ``accident'' as an occurrence involving a 
commercial motor vehicle operating on a highway in interstate or 
intrastate commerce which results in a fatality; bodily injury to a 
person who, as a result of the injury, immediately receives medical 
treatment away from the scene of the accident; or one or more motor 
vehicles incurring disabling damage as a result of the accident, 
requiring the motor vehicles to be transported away from the scene by a 
tow truck or other motor vehicle. It excludes occurrences involving 
only boarding and alighting from a stationary motor vehicle or 
involving only the loading or unloading of cargo.
    FMCSA acknowledges the potential impact on motor carriers' Safety 
Measurement System (SMS) scores that could result from States uploading 
reports about crashes involving attenuator trucks deployed at 
construction sites into the Agency's Motor Carrier Management 
Information System (MCMIS). Because these vehicles are deployed to 
prevent certain crashes through the use of flashing lights and to 
reduce the severity of crashes through the use of truck-mounted impact 
attenuators or crash cushions when motorists do not take appropriate 
action to avoid the obstacles in the construction zone, it is expected 
that these vehicles will be struck from time to time while the 
attenuators are deployed. Such events that occur in a construction 
zone, either stationary or moving, should not count against the safety 
performance record of the motor carrier responsible for the operation 
of the attenuator truck.

FMCSA's Decision

    In consideration of the above, FMCSA has determined that the 
current regulatory guidance should be revised to make clear that 
crashes involving motorists striking attenuator trucks are not 
considered accidents, as defined under 49 CFR 390.5. The Agency issues 
the following guidance to 49 CFR 390.5 to read as follows:

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

Regulatory Guidance for 49 CFR 390.5 Definition of ``Accident''

    Question: Are crashes involving motorists striking attenuator 
trucks while the impact attenuators or crash cushions are deployed 
included within the definition of ``accident'' with regard to the motor 
carrier responsible for the operation of the attenuator truck?
    Guidance: No. Attenuator trucks are highway safety vehicles 
equipped with an impact attenuating crash cushion intended to reduce 
the risks of injuries and fatalities resulting from crashes in 
construction work zones. Because these vehicles are deployed at 
construction work zones to prevent certain crashes through the use of 
flashing lights and to reduce the severity of crashes when motorists do 
not take appropriate action to avoid personnel and objects in the 
construction zone, it is expected that these vehicles will be struck 
from time to time while the impact attenuators or crash cushions are 
deployed. Therefore, such events are not considered accidents and the 
recordkeeping requirements of 49 CFR 390.15, Assistance in 
investigations and special studies, are not applicable with regard to 
the motor carrier responsible for the operation of the attenuator 
truck. If however, a commercial motor vehicle, as defined in 49 CFR 
390.5, strikes an attenuator truck, this event would be considered an 
accident for the motor carrier responsible for the operation of the 
vehicle that hits the attenuator truck.

Procedures

    Starting on the effective date of this regulatory guidance, any 
crash meeting the above criteria may be removed from a carrier's record 
of crashes. To do so the carrier operating the attenuator vehicle 
should file a Request for Data Review (RDR) using the DataQ system at 
https://www.dataqs.fmcsa.dot.gov, as a no reportable crash, and provide 
sufficient evidence to establish the crash in question took place 
between a vehicle and their attenuator vehicle deployed in a 
constructions zone. After the effective date of this regulatory 
guidance, the affected motor carrier may file a RDR to remove crashes 
related to this regulatory guidance from their carrier record for the 
previous 24 months.

    Issued on: March 18, 2015.
T.F. Scott Darling, III,
Acting Administrator.
[FR Doc. 2015-06817 Filed 3-25-15; 8:45 am]
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