Crash Preventability Demonstration Program |
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Daphne Y. Jefferson
Federal Motor Carrier Safety Administration
27 July 2017
[Federal Register Volume 82, Number 143 (Thursday, July 27, 2017)]
[Notices]
[Pages 35045-35050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-15833]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2014-0177]
Crash Preventability Demonstration Program
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice.
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SUMMARY: On July 12, 2016, FMCSA proposed a crash preventability
demonstration program. Based on the feedback received in response to
the Federal Register notice, FMCSA announces the initiation of a crash
preventability demonstration program in which the Agency would accept
requests for data review (RDRs) to evaluate the preventability of
certain categories of crashes through its national data correction
system known as DataQs. This notice describes the crash types that will
qualify for the demonstration program, the process for submitting RDRs
to evaluate the preventability of a crash, how decisions on
preventability will be displayed in Agency systems, and the data to be
collected through this program for use in future decisions about a
longer-term crash preventability program.
[[Page 35046]]
DATES: The crash preventability demonstration program will begin
accepting RDRs on August 1, 2017, for crashes that occur on or after
June 1, 2017.
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:
Background
Since its implementation in 2010, the Safety Measurement System
(SMS) has used safety performance information in the Behavior Analysis
and Safety Improvement Categories (BASICs) plus recordable crashes
involving commercial motor vehicles (CMVs), that are submitted by the
States through the Agency's Motor Carrier Management Information System
(MCMIS), to prioritize carriers for safety interventions (75 FR 18256).
The Agency uses the definition of ``accident'' in 49 CFR 390.5 to
identify those crashes that must be maintained by the motor carrier in
an accident register under 49 CFR 390.15. These include crashes
resulting in fatalities, bodily injuries requiring immediate medical
treatment away from the scene of the crash, or a vehicle being towed
from the scene because of disabling damage. These same crashes must be
reported by the States to FMCSA, through MCMIS, if the CMV has an
actual weight (i.e., gross vehicle weight) or gross vehicle weight
rating of 10,001 or more pounds or a gross combination weight rating of
10,001 or more pounds and is used on public highways. In addition,
crashes must be reported if the CMV is designed to transport nine or
more people, including the driver, and the motor carrier receives
compensation, and if a CMV in the crash is designed to transport 16 or
more people, including the driver regardless of compensation.
Additionally, if any motor vehicle in the crash is required to display
a hazardous materials placard, regardless of the weight of the vehicle,
it must be reported to FMCSA by the State. The crash data reported to
FMCSA by the States does not specify whether or not the crash was
preventable by the CMV driver.
The Crash Indicator BASIC uses crashes from the previous 24 months
to calculate a percentile for a motor carrier. SMS weights crashes
based on crash severity, with more weight given to fatality and injury
crashes than those that resulted in a vehicle being towed from the
scene with no injuries or fatalities. In addition, the crashes are time
weighted, with more recent crashes having more weight. All reportable
crashes are included in the Crash Indicator BASIC regardless of
preventability.
While the public SMS Web site provides a list of the recordable
crashes for the motor carrier, the Crash Indicator BASIC percentiles
have never been publicly available. The Crash Indicator BASIC
percentiles are, however, available to motor carriers who log in to
view their own data, as well as to FMCSA and law enforcement users.
Stakeholders have expressed concern that the Crash Indicator BASIC
may not identify the highest-risk motor carriers for interventions and
that the listing of crashes on the public Web site, without an
indication of preventability, can give an inaccurate impression about
the risk posed by the company.
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). This study
analyzed whether police accident reports provide sufficient,
consistent, and reliable information to support crash-weighting
determinations; whether a crash weighting determination process would
offer an even stronger predictor of crash risk than overall crash
involvement and how crash weighting would be implemented in the
Agency's SMS; and how FMCSA might manage a process for making crash-
weighting determinations, including the acceptance of public input.
Among the public comments to FMCSA's January 23, 2015, Federal
Register notice, the American Trucking Associations (ATA) provided a
list of certain types of not preventable crashes and suggested that
FMCSA establish a process by which documents demonstrating that the
crash was not preventable could be submitted to justify removing these
crashes from the motor carriers' records.
Based on ATA's recommendations and other feedback received in
response to the January 2015 Federal Register notice, on July 12, 2016,
FMCSA proposed, in a Federal Register notice, 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 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 documentation submitted with
the RDR established that the crash was not preventable.
Demonstration Program Details
Types of Crashes
The Agency's July 2016 Federal Register notice advised that a crash
would be considered not preventable if the documentation submitted by
the motor carrier or driver established that the CMV was struck by a
motorist who was convicted of one of the four following offenses or a
related offense:
1. Driving under the influence;
2. Driving the wrong direction;
3. Striking the CMV in the rear; or
4. Striking the CMV while it was legally stopped.
While there were comments opposing the demonstration program, there
were no comments opposing the categorization of the four proposed crash
scenarios as not preventable; so these categories will be retained in
the demonstration program as crashes that may be challenged by the
motor carrier through an RDR.
Additionally, FMCSA advised in the July 2016 Federal Register
notice that RDRs could also be submitted:
1. When an individual committed suicide by stepping or driving in
front of the CMV;
2. When the CMV was incapacitated by an animal in the roadway; or
3. When the crash was the result of an infrastructure failure.
Comments to the Federal Register notice largely supported
identifying these additional proposed crash scenarios as not
preventable. Numerous commenters suggested expanding the list of
crashes to include vehicles running stop signs and red lights, crashes
involving two or fewer vehicles, or any crash where the other driver
was cited. Many commenters provided specific examples of crashes their
drivers were involved in that they felt were not preventable. For
example, Bill Puckett discussed an incident where a driver was
operating on the right hand shoulder and crashed into the CMV while the
CMV was making a right turn.
The Institute of Makers of Explosives recommended including crashes
where vehicles are struck by debris, including trees and falling rocks.
The American Bus Association recommended including crashes where
vehicles are struck by cargo from another vehicle.
[[Page 35047]]
After consideration of these comments, FMCSA modifies 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. FMCSA believes that these
crash scenarios are similar to the scenarios originally proposed
because they generally are not complex. However, other crash scenarios
proposed by commenters are more complex and would require more analysis
and probably generate less consistent findings.
Therefore, the Agency has decided that 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.
As proposed in the July 2016 notice, FMCSA will use the
preventability standard in 49 CFR part 385, Appendix B: ``If a driver,
who exercises normal judgment and foresight could have foreseen the
possibility of the accident that in fact occurred, and avoided it by
taking steps within his/her control which would not have risked causing
another kind of mishap, the accident was preventable.''
Conviction Requirement
FMCSA proposed that evidence of a conviction, as defined in 49 CFR
383.5 and 390.5, be required to document that the crash was not
preventable by the motor carrier or driver. However, the vast majority
of commenters opposed this requirement, including Richard Metz, Douglas
B. Marcello, Vigillo, Knight Transportation, Greyhound, Advocates for
Highway and Auto Safety (Advocates), Truck Safety Coalition (TSC) and
the National Ready Mixed Concrete Association. 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.
In addition, some commenters pointed out that the courts make a
determination of ``at fault'' which has a definition different from
``preventable.''
After consideration of this feedback, FMCSA will not require
evidence of a conviction before processing crash preventability
requests in the demonstration program. The Agency will, however, review
conviction information, if provided.
Documents To Be Submitted
In the July 2016 notice, FMCSA proposed that the RDRs should
include all available law enforcement reports, insurance reports from
all parties involved in the crash, and any other relevant information.
Douglas B. Marcello, Vigillo, and the Owner Operators Independent
Driver Association (OOIDA) noted that receiving insurance reports from
other parties is unlikely and should not be required. In addition,
Robert Spikes cited a crash where the insurance company paid because it
was more cost effective than going to court. Comments also indicated
that the Agency should accept other evidence, including videos.
Therefore, FMCSA will not require someone submitting a crash
preventability RDR to include any specific documentation from third
parties, such as insurance companies, but it will be incumbent on the
submitter to provide sufficient documentation that a crash was not
preventable. The Agency will consider all relevant evidence submitted.
The burden is on the submitter to show by compelling evidence that
the crash was not preventable. However, in these and all crashes, FMCSA
reserves the right to request additional information on the crash,
which may include any documentation the carrier is required to maintain
under the Agency's regulations. Failure to submit documents requested
by the Agency may cause the RDR to be closed without a preventability
determination.
On August 1, the Agency's DataQs system will accept videos 5 MB or
smaller in specific video container formats, including MP4, MPG, MKV,
AVI, MPEG, and WMV file types. These file types will be accepted in
this demonstration program.
Re-Opening RDRs
If, during the demonstration program, a submitter receives a
determination that the crash was preventable or undecided, or the RDR
is closed for failure to submit additional requested documents, the RDR
may be re-opened once and the request reconsidered by FMCSA if
additional documentation is submitted.
Out of Service Violations
The Agency proposed that a crash would be found preventable if
documentation showed that the CMV driver was in violation of an out of
service (OOS) regulation at the time of the crash, e.g., the driver had
exceeded his/her hours of service limits. In addition, FMCSA advised
that the crash would be considered preventable if the post-crash
inspection revealed that an OOS violation existed prior to the crash.
United Vision Logistics asserted that an OOS violation should not
be determinative unless it was a contributing factor to the crash.
Transportation Safety Services also indicated that crashes should not
be considered preventable due to OOS violations.
While some commenters did not want other violations to impact the
crash preventability decision, the Agency is retaining this requirement
in the demonstration program consistent with the Agency's current
preventability review procedures. Operations in violation of an OOS
regulation demonstrate a disregard for safety and compliance. These
crashes were preventable because the vehicle and/or driver should not
have been operating. Therefore, if a vehicle and/or driver was
operating with any OOS condition under the North American Standard OOS
Criteria at the time of the crash, the RDR will result in a preventable
determination, because the vehicle and/or driver should not have been
on the roadway because of an OOS condition. Additionally, if the motor
carrier was in violation of an operations OOS order, the crash will be
determined to have been preventable.
Display of Crashes in FMCSA Systems
In the July 2016 Federal Register notice, the Agency proposed that
it would remove crashes determined to be ``Not Preventable'' from the
motor carrier's public SMS display. The Agency noted that Section 5223
of the Fixing America's Surface Transportation Act, Public Law 114-94,
prohibits the Agency from making available to the general public
information regarding crashes in which a determination is made that the
motor carrier or the CMV driver is not at fault.
In response to the Agency's proposal to remove not preventable
crashes from the public SMS display, commenters correctly stated that
the Agency was
[[Page 35048]]
improperly equating a finding of ``not preventable'' with a finding of
``not at fault.'' Advocates stated that determinations of fault are
``the province of the legal system'' and noted that independent
investigations of a crash may reach different fault conclusions.
Advocates advised that using ``only a limited amount of information
about the incident, and without all of the benefits provided to a jury
during a civil trial, including going to the scene, is grossly
misguided.'' The TSC added that the State court systems are responsible
for making determinations of fault. ATA advised that, ``The goal of
this process should not be to definitely declare fault, but to identify
the predictive value of crashes in the same way the agency does with
violations.''
Fault is generally determined in the course of civil or criminal
proceedings and results in the assignment of legal liability for the
consequences of a crash. By contrast, a preventability determination
seeks to identify the root causes for a crash and is used to prevent
the same type of crash from re-occurring. A preventability
determination is not a proceeding to assign legal liability for a
crash. Because preventability determinations are distinct from findings
of fault, Section 5223 does not prohibit the public display of not
preventable crashes.
The demonstration program is intended to analyze preventability.
The Agency believes that the public display of all crashes, regardless
of the preventability determination, provides the most complete
information regarding a motor carrier's safety performance record. The
Agency is committed to the open and transparent reporting of safety
performance data. Therefore, during the demonstration program, not
preventable crashes will continue to be listed on the public SMS site.
However, the review of the crash, and the subsequent determination,
will be clearly noted as described below. In addition, during the
demonstration program, the motor carrier's Crash Indicator BASIC
percentiles for motor carriers logged into the SMS, FMCSA, and law
enforcement users will show percentiles with and without the crashes
determined to be not preventable.
During the demonstration program, changes in SMS will not be
reflected in the Agency's mobile applications such as the SaferBus and
Query Central (QC Mobile) apps or the Pre-employment Screening Program.
Weighting of Not Preventable Crashes
FMCSA considered weighting crashes determined to be preventable
with a higher weight in the SMS to see the impacts to the Agency's
crash correlation models. YRC Worldwide, Inc. and OOIDA expressed
concerns about weighting crashes determined to be preventable. It was
noted that this might discourage participation in the demonstration
program. As a result, FMCSA will not use a higher severity weighting
for any crashes determined to be preventable for any SMS calculations
during the demonstration program. However, the Agency's analysis of the
demonstration program will review these crashes and include severity
weight options to determine impacts on crash correlation.
Preventability Decisions
The Agency did not receive comments requesting changes to the three
proposed preventability decisions. The three preventability decisions
will remain ``Not Preventable,'' ``Preventable,'' and ``Undecided.''
FMCSA clarifies below how these decisions will be displayed:
1. Not Preventable--The public display of SMS will include a
notation that reads, ``FMCSA reviewed this crash and determined that it
was not preventable.'' For logged-in users (motor carriers viewing
their own data, FMCSA, and law enforcement users), two Crash Indicator
BASIC percentiles will be calculated--one with and one without the not
preventable crash(es).
2. Preventable--The public display of SMS will include a notation
that reads, ``FMCSA reviewed this crash and determined that it was
preventable.''
3. Undecided--In these cases, 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.
Input From the Public
The July 2016 Federal Register notice proposed to allow public
input on any crashes with a proposed not preventable determination.
United Vision Logistics and the National Motor Freight Traffic
Association do not believe that an opportunity for public input should
be available in the program. The American Association for Justice
advised that the public must have access to the data used to make a
determination.
The opportunity to collect information from other parties is
critical to determining the impacts and costs of this program.
Therefore, during the demonstration program, if a crash is reviewed and
results in a preliminary finding that it was not preventable, the crash
report number, U.S. DOT number, motor carrier name, crash event date,
crash event State and crash type will be listed on the Agency's DataQs
Web site.
Any member of the public with documentation or data to refute the
proposed finding will have 30 days to submit the documentation through
the DataQs system at https://dataqs.fmcsa.dot.gov. Information on how
to submit additional documentation is available at https://www.fmcsa.dot.gov/safety/crash-preventability-program.
Any new documents or data will be reviewed and considered before
FMCSA makes a final determination. Final determinations will be
reflected on SMS within 60 days of the final decision.
DataQs
Motor carriers and drivers will submit crash preventability RDRs
through the Agency's DataQs system. DataQs has been modified to provide
this functionality. The DataQs system is available at: https://dataqs.fmcsa.dot.gov.
Information on how to submit a crash preventability RDR is
available on the Agency's Web site at https://www.fmcsa.dot.gov/safety/crash-preventability-program.
It should be noted that crash preventability RDRs for crashes that
predate this program or that do not correspond to the crash scenarios
listed above will not be processed. However, motor carriers and drivers
should continue to submit RDRs through DataQs when crashes are assigned
to the wrong carrier or the crash did not meet the definition of a
recordable crash, using processes currently in place.
Reviewers
FMCSA will use contract resources to complete two stages of review
within the DataQs system. In stage 1, the reviewer will collect all
documents related to the crash from the submitter and FMCSA systems.
In stage 2, an experienced crash report reviewer will evaluate all
of the documents from the submitter and FMCSA systems, including the
MCMIS crash information. It should be noted that if an RDR is submitted
before the MCMIS crash report is received, the
[[Page 35049]]
evaluation will be put on hold and the submitter will be advised.
The stage 2 reviewer will confirm that the crash meets one of the
crash types noted above. Based on the evidence reviewed, the stage 2
reviewer will make a recommendation to FMCSA as to whether compelling
evidence demonstrates that the crash was not preventable. The FMCSA
reviewer will review the evidence considered by the stage 1 reviewer
and the stage 2 recommendation. If FMCSA agrees with the recommendation
of not preventable, the crash will be posted for public input as noted
above. If the recommendation is for a determination that the crash was
preventable or that the information submitted was insufficient to
support a determination, and the FMCSA reviewer agrees, the
determination of ``Preventable'' or ``Undecided'' would be noted in the
public SMS display as described in the ``Preventability Decisions''
section above added to the corresponding crash in SMS. Changes would be
reflected on SMS within 60 days.
Quality Controls
At the onset of the program, all RDRs will be checked by a second
reviewer during stage 2. If FMCSA's determination differs from the
stage 2 recommendation, an additional final reviewer will be utilized
and make a recommendation to FMCSA.
Throughout the program, FMCSA will evaluate the quality control
process. For continued consistency of crash preventability
determinations, a percentage of RDRs will be reviewed before a
recommendation is made to FMCSA.
Fraudulent Requests
In accordance with the Agency's existing DataQs program, any
intentionally false or misleading statement, representation, or
document that is provided in support of an RDR may result in
prosecution for a violation of Federal law (18 U.S.C. 1001).
Agency Use of Data
Under 49 U.S.C. 504(f), ``No part of a report of an accident
occurring in operations of a motor carrier, motor carrier of migrant
workers, or motor private carrier and required by the Secretary, and no
part of a report of an investigation of the accident made by the
Secretary, may be admitted into evidence or used in a civil action for
damages related to a matter mentioned in the report or investigation.''
The crash preventability determinations made under this program are
intended only for FMCSA's use in determining whether the program may
improve the Agency's prioritization tools. These determinations are
made on the basis of information available to FMCSA at the time of the
determination and are not appropriate for use by private parties in
civil litigation. These determinations do not establish fault or
negligence by any party and are made by persons with no personal
knowledge of the crash.
In addition, the crash preventability determinations made under
this program will not affect any carrier's safety rating or ability to
operate. FMCSA will not issue penalties or sanctions on the basis of
these determinations, nor do they establish any obligations or impose
legal requirements on any motor carrier. These determinations also will
not change how the Agency will make enforcement decisions.
Information submitted about a crash as part of this demonstration
program may be shared with the appropriate FMCSA Division Office for
further investigation. Likewise, if an investigation reveals additional
information about a crash for which the demonstration program made a
preventability determination, this information may be shared within the
Agency and the crash subjected to further review.
Throughout this demonstration period, FMCSA will maintain data so
that at the conclusion of the test, the Agency can conduct certain
analyses. It is expected that the Agency's analyses would include, but
not be limited to, the cost of operating the test and its extrapolation
to a larger program; future crash rates of carriers that submitted
RDRs, future crash rates of motor carriers with not preventable
crashes, and impacts to SMS crash rates and improvements to
prioritization. The analysis will be used to examine ATA's assertion
that crashes of these types are not preventable and that removing these
crashes from the motor carriers' records would result in a better
correlation to future crash risk, and inform future policy decisions on
this issue.
Demonstration Period
FMCSA will accept RDRs for crashes occurring on or after June 1,
2017. FMCSA will begin accepting RDRs through DataQs for this
demonstration program on August 1, 2017. This will provide the Agency
with time to conduct outreach to the industry and for motor carriers or
drivers to collect needed documents for submission.
This demonstration program is expected to last a minimum of 24
months.
Other Issues
Prioritization
For the purpose of prioritizing motor carriers for safety
interventions, FMCSA will continue to use all crashes during the
demonstration program.
Safety Fitness Determination Rulemaking
A few commenters asked how this program would impact the Agency's
Safety Fitness Determination (SFD) notice of proposed rulemaking (NPRM)
published on January 21, 2016. Preventability determinations made as
part of this demonstration program will not be used for the purpose of
safety ratings under the Agency's existing safety fitness determination
process. The Agency will continue to make preventability determinations
under its current procedures in 49 CFR part 385, Appendix B, when a
crash adversely affects a carrier's safety rating. If a carrier
disagrees with the calculation of the crash factor during a compliance
review the carrier must request removal under the procedures identified
in the compliance review report it receives or under the procedures
identified in 49 CFR 385.15. The determinations made through this
demonstration program will only be used to determine the impacts of
preventability determinations on the effectiveness of the SMS in
identifying the highest-risk carriers for interventions. Crash
determinations made in this demonstration program will not be
considered as part of any Agency action or proceeding that may impact a
carrier's safety rating, including safety rating upgrade requests.
In addition, FMCSA published a notice withdrawing the SFD NPRM on
March 23, 2017.
Opposition
While most comments to the July 2016 Federal Register notice
supported the program, there were four commenters that expressed
opposition on the program in its entirety. The TSC advised that it
``firmly opposes'' the program. TSC and Road Safe America believe that
FMCSA should not expend time or money pursuing this program, and that
instead the Agency should focus on regulations that will reduce
crashes. TSC, Road Safe America, and the American Association for
Justice want all crashes to be in SMS. The Coalition of Seven added
that the ``test study as proposed. . .is of marginal utility and would
not materially improve the accuracy of the crash data.''
The purpose of this demonstration program, however, is to gather
data that
[[Page 35050]]
the Agency will use to examine the feasibility, costs, and benefits of
making crash preventability determinations. The data gathered through
the demonstration program will allow the Agency to better evaluate the
utility of making crash preventability determinations. As a result,
FMCSA is moving forward to implement this demonstration program.
Issued under the authority delegated in 49 CFR 1.87 on: July 19,
2017.
Daphne Y. Jefferson,
Deputy Administrator.
[FR Doc. 2017-15833 Filed 7-26-17; 8:45 am]
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