Crash Preventability Determination Program |
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Raymond P. Martinez
Federal Motor Carrier Safety Administration
5 August 2019
[Federal Register Volume 84, Number 150 (Monday, August 5, 2019)]
[Notices]
[Pages 38087-38091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16693]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2014-0177]
Crash Preventability Determination Program
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice and request for comments.
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SUMMARY: On July 27, 2017, FMCSA announced a crash preventability
demonstration program to evaluate the preventability of eight
categories of crashes through submissions of Requests for Data Review
to its national data correction system known as DataQs. After 18 months
of operating the program, FMCSA has decided to operate a crash
preventability determination program, using a streamlined process, and
proposes to modify the Safety Measurement System to remove crashes
found to be not preventable from the prioritization algorithm and
noting the not preventable determinations in the Pre-Employment
Screening Program. In addition, FMCSA proposes to consolidate two of
the original crash types in the demonstration program and start
reviewing additional crash types to determine if crashes in the
additional categories are predominantly not preventable. FMCSA seeks
comments on its implementation of these changes and on the new crash
types.
DATES: Comments must be received on or before October 4, 2019.
ADDRESSES: You may submit comments bearing the Federal Docket
Management System (FDMS) Docket ID FMCSA-2014-0177 using any of the
following methods:
Federal eRulemaking Portal: Go to www.regulations.gov. Follow the
on-line instructions for submitting comments.
Mail: Docket Management Facility; U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor,
Room W12-140, Washington, DC 0590-0001.
Hand Delivery or Courier: West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
Fax: 1-202-493-2251.
Instructions: Each submission must include the Agency name and the
docket number for this notice. Note that DOT posts all comments
received without change to www.regulations.gov, including any personal
information included in a comment. Please see the Privacy Act heading
below.
Docket: For access to the docket to read background documents or
comments, go to www.regulations.gov at any time or visit Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The on-line Federal document management system
is available 24 hours each day, 365 days each year. If you want
acknowledgment that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgement
page that appears after submitting comments on-line.
Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to better inform its processes. DOT posts
these comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
FOR FURTHER INFORMATION CONTACT: Mr. Catterson Oh, Compliance Division,
Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE,
Washington, DC 20590, Telephone 202-366-6160 or by email:
Catterson.Oh@dot.gov. If you have questions regarding viewing or
submitting material to the docket, contact Docket Services, telephone
(202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request for Comments
FMCSA encourages you to participate by submitting comments and
related materials.
Submitting Comments
If you submit a comment, please include the docket number for this
notice FMCSA-2014-0177, indicate the specific section of this document
to which each comment applies, and provide a reason for each suggestion
or recommendation. You may submit your comments and material online or
by fax, mail, or hand delivery, but please use only one of these means.
FMCSA recommends that you include your name and a mailing address, an
email address, or a phone number in the body of your document so the
Agency can contact you if it has questions regarding your submission.
To submit your comment online, go to http://www.regulations.gov and
put the docket number, ``FMCSA-2014-0177'' in the ``Keyword'' box, and
click ``Search.'' When the new screen appears, click on ``Comment
Now!'' button and type your comment into the text box in the following
screen. Choose whether you are submitting your comment as an individual
or on behalf of a third party and then submit. If you submit your
comments by mail or hand delivery, submit them in an unbound format, no
larger than 8\1/2\ by 11 inches, suitable for copying and electronic
filing. If you submit comments by mail and would like to know that they
reached the facility, please enclose a stamped, self-addressed postcard
or envelope.
FMCSA will consider all comments and material received during the
comment period and may change this notice based on your comments.
II. Background
History
The Agency's Crash Indicator Behavior Analysis Safety Improvement
Category (BASIC) in FMCSA's Safety Measurement System (SMS) includes
all crashes, without regard to the preventability of the crash. On
January 23, 2015, FMCSA announced the results of the Agency's study on
the feasibility of using a motor carrier's role in crashes in the
assessment of the company's safety (80 FR 3719). In response to the
January 2015 Federal Register notice,
[[Page 38088]]
the American Trucking Associations (ATA) provided a list of certain
types of crashes it considered not preventable and suggested that FMCSA
establish a process by which documents could be submitted on these
crashes and they could be removed from the motor carriers' records.
In a Federal Register notice dated July 12, 2016, FMCSA proposed a
demonstration program to determine the efficacy of preventability
determinations on certain types of crashes that are generally less
complex (81 FR 45210). The Agency proposed to accept Requests for Data
Review (RDRs) to evaluate the preventability of certain categories of
crashes through its national data correction system known as DataQs. It
proposed that a crash challenged through an RDR would be found not
preventable when evidence submitted with the RDR established that the
crash could not have been averted by an act, or failure to act, by the
motor carrier or the driver.
On July 27, 2017, FMCSA published a subsequent Federal Register
notice announcing the start of the demonstration program to test eight
specific crash types and explaining the details of the program (82 FR
35045). On February 7, 2018, FMCSA published a Federal Register notice
to clarify how crash types were being defined and to provide other
information to help submitters (83 FR 5506).
First Set of Crash Types
To date, FMCSA has reviewed RDRs submitted under one of the
following eight crash types:
1. When the commercial motor vehicle (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.
Statistics
Between August 1, 2017 and May 31, 2019, 12,249 RDRs were submitted
to FMCSA. Approximately 56 percent of the submitted RDRs were eligible,
meaning they were one of the eight crash types. After reviewing the
eligible crashes, approximately 93 percent were found to have been not
preventable.
FMCSA maintains statistics on the program on its website at
www.fmcsa.dot.gov/crash-preventability-demonstration-program. As of May
31, 2019, information from the program is as follows:
Table 1--Crash Preventability Program Determinations by Crash Type
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Crash type Total RDRs Not preventable Preventable Undecided
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1. When the commercial motor vehicle (CMV) was 417 386 12 19
struck by a motorist driving under the
influence (or related offense)...............
2. When the CMV was struck by a motorist 365 334 6 25
driving the wrong direction..................
3. When the CMV was struck in the rear........ 3,927 3,675 49 203
4. When the CMV was struck while legally 444 413 8 23
stopped or parked, including when the vehicle
was unattended...............................
5. When the CMV was struck by an individual 17 16 0 1
committing or attempting to commit suicide by
stepping or driving in front of the CMV......
6. When the CMV sustained disabling damage 218 206 2 10
after striking an animal in the roadway......
7. When the crash was a result of an 82 79 2 1
infrastructure failure, falling trees, rocks,
or other debris..............................
8. When the CMV was struck by cargo or 149 138 4 7
equipment from another vehicle...............
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Total..................................... 5,619 5,247 83 289
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As of May 31, 2019, 3,558 unique carriers had submitted RDRs. Of
these, 1,750 carriers submitted 1 RDR, 1,618 carriers submitted between
2 and 9 RDRs, and 190 carriers submitted 10 or more RDRs. The highest
number of RDRs submitted by 1 carrier was 254 RDRs.
For the majority of crashes that were determined to be preventable,
the driver was operating with an out of service (OOS) condition under
the North American Standard OOS Criteria, including that the driver was
not properly licensed on the day of the crash. The Agency was clear in
its July 2017 Federal Register notice that in these circumstances,
crashes would be found to be preventable.
The undecided determinations were largely due to the submitter's
failure to provide, after FMCSA's request, documentation confirming the
validity of the driver's commercial driver's license (CDL) or medical
certification on the date of the crash, or would found to be undecided
because the documentation provided contained conflicting information
about the submitter's actions in the crash.
Review Processes
FMCSA has used contract resources to complete two stages of review
within the DataQs system. In stage 1, the reviewer collects all
documents related to the crash from the submitter and FMCSA systems
including the Motor Carrier Management Information System (MCMIS) crash
report, the Commercial Driver's License Information System (CDLIS)
driver history record, any post-crash inspection report, the Driver
Information Resource, any recent enforcement information for the motor
carrier, and any media reports about the crash.
If the CDLIS record has been updated since the date of the crash,
the reviewer requests documentation of the CDL or medical certificate
on the date of the crash. In the cases of fatal crashes, the reviewer
requests the CMV driver's post-crash drug and alcohol test results.
In stage 2, an experienced crash report reviewer evaluates all of
the documents from the submitter and stage 1. Based on
[[Page 38089]]
the evidence reviewed, the stage 2 reviewer makes a recommendation to
FMCSA as to whether the submitter demonstrated, through compelling
evidence, that the crash was not preventable.
An FMCSA employee reviews the evidence collected and considered by
the stage 2 reviewer and the recommendation and makes the
determination. If FMCSA agrees with the recommendation of not
preventable, the crash is posted for public input on the DataQs system
for 30 days. Any new documents or data will be reviewed and considered
before FMCSA makes a final determination. At this time, the DataQs
public input functionality has been used only two times, to provide
additional information from the submitter and to make a general comment
about not preventable crashes that was not crash specific.
In addition, as announced in the Agency's February 2018 Federal
Register notice, the Agency recognized that some parties involved in
the crash might not be able to provide input within 30 days. The Agency
is maintaining a list of not preventable final determinations on its
website at https://www.fmcsa.dot.gov/safety/crash-preventability-demonstration-program. This list is updated monthly. If at any time a
party has information and documentation to counter a determination,
FMCSA will accept that information at crash.preventability@dot.gov and
may change the determination. To date, no emails have been received
with information contrary to a determination.
Final determinations (i.e., not preventable, preventable,
undecided) made through this demonstration program are noted on the
Agency's public SMS website within 60 days. No crashes are removed from
the SMS Crash Indicator BASIC. However, a logged-in motor carrier
viewing its own data in SMS sees an alternative percentile and measure
with the crashes with not preventable determinations removed. The Crash
Indicator BASIC percentiles have never been publicly available and
remain available only to motor carriers who log in to view their own
data, as well as to FMCSA and law enforcement users.
Submitted Documents
FMCSA has not required submitters to provide any specific
documentation. The burden is on the submitter to show, by compelling
evidence, that the crash was not preventable. FMCSA estimates that 99
percent of submitters of eligible crashes provided Police Accident
Reports (PARs). In the limited situations where a PAR was not submitted
and the crash was found to be eligible, another official law
enforcement-issued document with sufficient information was provided,
such as a State-issued driver information exchange report with
sufficient details of the crash.
FMCSA notes that other evidence such as photos and videos
significantly improved the Agency's ability to determine: (1) If the
crash met one of the eligible crash types or not; and, if eligible, (2)
preventability. Internal company documents and insurance reports were
provided by some submitters but, when reviewed on their own, did not
generally provide compelling evidence.
Effectiveness Analysis
FMCSA conducted a preliminary analysis of the 2-year demonstration
program. A copy of the Agency's analysis using 18 months of safety data
is included in the docket for this notice. This analysis quantified the
program's impacts in terms of: (1) Number of carriers impacted; (2)
size of SMS percentile changes; and (3) future crash rate of identified
carriers like is calculated in the Agency's SMS effectiveness analysis.
In summary, the carriers that have Not Preventable crashes removed
through the demonstration program see a reduction in their Crash
Indicator BASIC percentiles. The analysis team found a negligible
impact on SMS effectiveness after removing Not Preventable crashes.
Regardless of whether Not Preventable crashes are removed, carriers
identified in SMS, when considering all BASICs, have a crash rate 97%
higher than those not identified. The lack of an impact is mainly a
result of the small number of carriers affected by the removal of Not
Preventable crashes. Only 169 and 208 carriers are expected to gain and
lose alert in the Crash Indicator BASIC, respectively, which is a small
fraction (2%) of the 8,634 carriers identified in the Crash Indicator
BASIC.
Small carriers that have Not Preventable crashes removed through
the demonstration program have the largest reductions in their Crash
Indicator BASIC percentiles, mainly by dropping below the data
sufficiency threshold. However, most of the small carrier population,
did not participate. To improve representation, small carriers could be
encouraged participate in the Agency's future program.
Implementation Proposal
Changes to Eligible Crash Types
FMCSA proposes two changes to the original eight crash types.
First, FMCSA would combine the crash type involving infrastructure
failures and debris with the crash type for CMVs struck by cargo and
equipment. The distinction between these two crash types did not result
in different determinations and, in some cases, required submitters to
resubmit their RDRs under the other crash type. In addition, FMCSA is
changing the ``Motorist Under the Influence'' crash type to
``Individual Under the Influence'' to include pedestrians and
bicyclists. As a result, the revised crash types are:
1. Struck in rear--Crashes would qualify when the striking vehicle
was directly behind the submitter's vehicle prior to the crash and
strikes the CMV on the back plane. This crash type does not include
side swipes or when the point of impact was on the side toward the rear
of the truck/trailer.
2. Legally stopped or parked--Crashes would qualify if the CMV was
stopped at a light, stop sign or other traffic control device, stopped
for railroad crossings or school buses, or was parked. This crash type
does not include crashes that occurred when the CMV was stopped in
traffic.
3. Suicides or Suicide Attempts--Crashes would qualify if the
submitter provided evidence that the CMV struck an individual
committing or attempting to commit suicide. This crash type does not
include action where a vehicle or pedestrian enters the CMV's path with
no documented reason.
4. Wrong Direction--Crashes would qualify only if the CMV was
struck after the other vehicle fully crossed the center line or median,
or the other driver was driving in the wrong direction (e.g., driving
southbound in the northbound lanes of an interstate or opposite on a
one-way road). To qualify for this crash type the other vehicle was
operating in the opposing direction before the crash. This crash type
does not include when the vehicle partially crosses the center line or
when the involved vehicles were traveling in the same direction. This
crash type also does not include when the CMV crossed into the other
lane.
5. Animal Strikes--Crashes would qualify only if the CMV struck the
animal. This would not include crashes where the CMV crashed avoiding
the animal.
6. Individuals Under the Influence--This crash type would require
evidence that the CMV was struck by an individual who was operating
``under
[[Page 38090]]
the influence'' (or related violation such as operating while
intoxicated), according to the legal standard of the jurisdiction in
which the crash occurred, to include either alcohol or drug test
results, an arrest, a citation/violation, or a refusal.
7. Infrastructure failure or struck by cargo, equipment or debris--
This crash type would be changed to include any cargo and equipment,
not just fallen cargo and equipment. This would include crashes when
the cargo or equipment on a vehicle shifts or extends into the path of
travel. This crash type would not include when the CMV was struck by
another vehicle that was not being transported as cargo.
In addition, FMCSA proposes to test the following additional crash
types. These crashes were frequently submitted during the demonstration
program, but did not qualify for one of the original crash types.
However, the PARs provided sufficient information to reach a
preventability determination.
8. When the CMV is struck on the side in the rear--These crashes
would include when the CMV is struck on the side at the rear of the CMV
when the other driver was in another lane before the crash and strikes
the CMV at the side. For example, this would include when the PAR
indicates that the CMV was struck at the 5:00 or 7:00 point of impact;
9. When the CMV is struck by a vehicle that did not stop or slow in
traffic--These crashes are when the CMV is stopped in a traffic lane
due to traffic. This would include when the CMV is struck on the side;
10. When the CMV is struck by a vehicle that failed to stop at a
traffic control device (e.g., stop sign, red light or yield);
11. When the CMV is struck by a vehicle that was making a U-turn or
illegal turn;
12. When the CMV is struck by a driver who experiences a medical
issue which causes the crash;
13. When the CMV is struck by a driver who admits falling asleep or
admits distracted driving (e.g., cellphone, GPS, passengers, other);
14. When the crash involved an individual ``under the influence''
(or related violation such as operating while intoxicated), according
to the legal standard of the jurisdiction in which the crash occurred,
even if the CMV was struck by another vehicle involved in the crash and
not by the individual under the influence. The standards for test
results, arrest or a citation would continue to apply; or
15. When the crash involved a driver operating in the wrong
direction, even if the CMV was struck by another vehicle involved in
the crash and not by the driver operating in the wrong direction. The
standard for the other wrong direction vehicle to be completely
operating in the wrong lane (e.g., completely across the center line or
over a median) or the other driver was driving in the wrong direction
(e.g., driving southbound in the northbound lanes of an interstate or
opposite on a one-way road.) to qualify for this crash type.
FMCSA expects to analyze these additional crash types for 24 months
but may announce changes earlier if: (1) Certain crash types cannot be
consistently reviewed; (2) these crash types result largely in
preventable or undecided determinations; or (3) there is sufficient
information to make recommendations for future implementation.
SMS and PSP Changes
Effective for crashes on or after August 1, 2019, for any of the 15
types noted above, FMCSA would continue to display the crashes in SMS
with notations of not preventable, preventable or undecided but would
remove crashes with not preventable determinations from the SMS Crash
Indicator BASIC calculation. FMCSA will also note the not preventable
determinations in PSP. FMCSA proposes that preventable determinations
would not be noted in PSP because the driver may not be aware when the
motor carrier submits a crash that results in a preventable
determination. The Agency is specifically interested in receiving
comments on this issue.
As crashes in SMS are only displayed for 2 years, notations in SMS
for crashes reviewed during the demonstration program will remain for 2
years from the date of the crash. Crashes reviewed during the
demonstration program will not be removed from calculation of the SMS
Crash Indicator BASIC but motor carriers will still have access to the
alternative measures and percentiles.
The Agency has an interest in maintaining transparent and accurate
safety performance data. The Agency also believes that removing not
preventable crashes from the SMS may provide additional safety
incentives to carriers that are not reflected in the effectiveness
study, but requests comments on this issue.
The proposed changes to SMS would go into effect only after
comments to this notice are fully reviewed and any needed changes
addressed. In addition, FMCSA needs to implement information technology
system changes, specifically in the DataQs system, to sustain longer
term operations and reduce costs and improve efficiencies.
As a result, the changes proposed in this notice would not go into
effect until these steps, and other needed implementation actions, are
completed and the Agency publishes a follow up Federal Register notice.
Impact of SMS Changes
Once FMCSA begins removing crashes from the Crash Indicator BASIC,
and because SMS is a relative system, the calculation may increase the
Crash Indicator BASIC percentiles of other carriers. As a result, a
motor carrier that does not have any additional crashes may see its
Crash Indicator BASIC percentile increase because its peers submitted
RDRs and crashes were found to be not preventable and were removed from
the calculations.
Although removing not preventable crashes from the calculation of
the Crash Indicator BASIC may identify a different set of carriers for
intervention, the Crash Indicator BASIC percentiles have never been
publicly available and will remain available only to motor carriers who
log in to view their own data, as well as to FMCSA and law enforcement
users. This change would not change any carrier's safety fitness rating
or ability to operate, nor would it establish any obligations or impose
legal requirements on any motor carrier. This change also would not
change how the Agency makes enforcement decisions.
End of Demonstration Program and Start of New Program
FMCSA proposes to continue accepting crashes occurring on or after
June 1, 2017, and through July 31, 2019, until September 30, 2019. This
will allow RDRs for crashes occurring in July 2019 to be submitted,
reviewed and preventability determinations noted in SMS.
FMCSA is preparing to be able to accept the 15 crash types noted
above in DataQs on or about October 1, 2019. Submitters will be able to
submit crashes occurring on or after August 1, 2019, for all 15 crash
types. As a result, there is no gap in time for submissions of RDRs.
Public Input Changes
As previously noted, FMCSA has not received public input on any of
the crashes. As a result, FMCSA proposes to cease the 30-day public
input period and cease the practice of publishing preliminary not
preventable determinations. This will allow RDRs to be closed with not
preventable determinations without the 30-day
[[Page 38091]]
delay and will reduce resources to take additional action on the RDR.
In addition, FMCSA proposes to stop publishing a list of not
preventable determinations on the Agency's website. Instead, the Agency
would accept information about any crash by email to the
crash.preventability@dot.gov email address for any crash in SMS with a
not preventable notation. Any information received would be fully
considered and could result in a change in the determination. The
Agency is specifically interested in receiving comments on this issue.
Document Requirement
FMCSA also proposes requiring submitters to provide the complete
PAR to participate in the program. In nearly all qualified submissions,
a PAR was needed to reach a determination, and most submitters provided
the PAR as the required compelling evidence. The submitter may provide
other documentation as well, as the burden will remain on the submitter
to provide compelling evidence showing that the crash was not
preventable. Therefore, if only the PAR is submitted and it contains
conflicting information about the crash (i.e., the narrative is
different than the diagram or point of impact information) and FMCSA
cannot determine eligibility for one of the 15 crash types, the crash
will be deemed Not Eligible. If the crash is found to be eligible, the
PAR information conflicts, this may result in an undecided
determination.
Process Information
The demonstration program required submitters to resubmit the RDR
for it to be considered under another crash type. In the future, FMCSA
proposes to develop the functionality in DataQs to allow FMCSA to
change the crash type on behalf of the submitter to another eligible
crash type, when appropriate.
FMCSA will streamline the review process and use only one stage of
contract reviewers to provide a recommendation. In addition, FMCSA may
allow the contract reviewers to close RDRs for crashes that are not one
of the 15 eligible crash types.
To date, the stage 1 reviewer has pulled the MCMIS crash record and
a current CDLIS report for the submitter's driver. For many RDRs, the
driver had a license change such as a renewal or new medical
certificate after the date of the crash, and FMCSA requested
confirmation of the CDL or medical certificate on the date of the
crash. On only a few RDRs did this result in a determination that the
driver was not qualified on the date of the crash. In most RDRs, the
MCMIS crash report accurately reflected the driver's proper licensing
status at the time of the crash. As a result, FMCSA proposes to rely
solely on the MCMIS report to confirm the driver's license and medical
certification status as part of implementation.
FMCSA proposes to continue reviewing any post-crash inspection
reports and if the inspection shows that the CMV was in violation of an
OOS regulation under the North American Standard OOS Criteria prior to
the crash or that the driver was not properly licensed, the crash would
be deemed preventable. In addition, FMCSA will continue to request
post-crash drug and alcohol test results when the crash results in a
fatality.
Crash Preventability Determinations During Investigations and Safety
Audits
It should be noted that the crash preventability determination
program does not change FMCSA's processes for reviewing crashes during
an investigation or safety audit. In the event an investigation or
audit results in a different determination than was made through this
program, FMCSA will review all information provided and the
determination made through this program may change.
National Academy of Sciences' Correlation Study
FMCSA proposes to make these changes to SMS separately from the
ongoing work that FMCSA is undertaking in response to the June 27,
2017, report of the National Academy of Sciences (NAS), ``Improving
Motor Carrier Safety Measurement.'' In its report, the NAS noted that
the demonstration program was of interest but did not issue a
recommendation directly relating to the program.
Comments Sought
FMCSA seeks comments generally on the proposals described above.
FMCSA also seeks comments specifically on the following questions.
1. If you participated in the demonstration program, did you
realize any new safety incentives to your operations? If so, how were
they quantified?
2. Would the ability to have not preventable crashes removed from
the calculation of your Crash Indicator BASIC measure and percentile
provide any new safety incentives to your operations?
3. If you have not submitted a crash for a preventability
determination, what were your reasons for not participating?
Dated: July 31, 2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-16693 Filed 8-2-19; 8:45 am]
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