Q: What are the two crash preventability notices published in July 2016?
One notice provides the Agency’s responses to comments received in response to our January 23, 2015, notice releasing the results of our crash preventability research. That notice explains that FMCSA conducted additional analysis, in response to comments, on how the Agency uses crash information.
The second Federal Register notice proposes developing and implementing a demonstration program to determine the efficacy of conducting preventability determinations on certain types of crashes that generally are less complex. This notice provides FMCSA’s proposal for a demonstration program and seeks additional comments.
Q: What crash information is currently available on the Safety Measurement System (SMS)?
The public SMS website provides information on the recordable crashes of motor carriers. The Crash Indicator BASIC percentiles have always been available only to motor carriers who log in to view their own data, as well as to Agency and law enforcement users.
Q: Why has FMCSA taken so long to take action on this issue?
Research on this issue conducted by FMCSA, as well as independent organizations, has demonstrated that crash involvement is a strong indicator of future crash risk, regardless of role in the crash. FMCSA’s recently completed SMS Effectiveness Test shows that motor carriers with high percentiles in the Crash Indicator BASIC have crash rates that are 85 percent higher than the national average.
The Agency took time to carefully study the issue carefully and gather public input before determining a path forward. Earlier this year the Agency published its report and asked for comments. The proposals in these notices are based on the comments received in response.
Q: The Fixing America’s Surface Transportation (FAST) Act does not require this program. Why is FMCSA doing this now?
The FAST Act only requires the Agency’s Motor Carrier Safety Advisory Committee (MCSAC) to review the treatment of preventability in the SMS once the National Academies of Science complete their study. However, in response to the Federal Register notice published on January 23, 2015, describing the Crash Weighting Study, the Agency continues to receive feedback from stakeholders expressing concerns about this issue. Proposing this program is a first step toward addressing those comments. By gathering data at this time, FMCSA will be able to provide the MCSAC with more data when considering a broader crash preventability program. By testing these limited crash scenarios, the Agency will be able to determine how often they are deemed “Not Preventable” and will be able to get experience operating a program to develop cost and resource estimates for any larger program.
Q: What is the Agency proposing?
On an effective date to be named in a future Federal Register notice, the Agency proposes to begin a demonstration program under which it would accept requests for data review (RDRs) through FMCSA’s DataQs system. The Agency would accept an RDR as part of this program when documentation proved that the crash was not preventable by the motor carrier or commercial driver.
A crash would be considered “not preventable” if the commercial motor vehicle (CMV) was struck by a motorist who was convicted of one of the four following offenses or a related offense:
- Driving under the influence;
- Driving the wrong direction;
- Striking the CMV in the rear; or
- Striking the CMV while it was legally stopped.
The demonstration program would also test the impacts of determining a crash to be “not preventable” when it was the result of a suicide, an animal strike, or an infrastructure failure.
Q: How long would the demonstration program run?
FMCSA proposes that the minimum time period for this crash preventability test would be 24 months.
Q: What would need to be submitted through the DataQs system?
The Agency proposes that evidence of a conviction must be submitted with the RDR to document that the crash was not preventable by the motor carrier or driver. In addition to documentation of the conviction, these RDRs would include all available law enforcement reports, insurance reports from all parties involved in the crash, and any other relevant information. For events that did not that did not result in a conviction (e.g., animal strikes and suicides), police reports and insurance information would be submitted.
Q: Why isn’t the Agency’s list of crash scenarios the same as those listed in the American Trucking Associations (ATA) proposal?
Because some of the crash scenarios submitted by ATA were too broadly defined and/or may not result in convictions, the Agency is not using the suggested standard of “was found responsible by law enforcement for the crash.” Previous research by the Agency showed that Police Accident Reports do not generally provide a clear determination as to the preventability of a crash. Relying on a conviction related to one of the crash scenarios described ensures all parties involved receive adequate due process.
Q: Who will be reviewing the Requests for Data Review during the demonstration program?
FMCSA is considering a process in DataQs that would direct these types of requests to a group of reviewers under the Agency’s direct supervision. This would be FMCSA staff and a third party under contract to FMCSA. During the test period, these RDRs would not be directed to the States.
Q: What are the potential outcomes from a crash preventability review?
The Agency proposes that the RDR would result in one of the following three decisions and actions:
- Not Preventable – In these cases, the crash is removed from SMS.
- Preventable – In these cases, the crash is not removed from SMS for purposes of calculating the Crash Indicator BASIC percentile. FMCSA is considering options for weighting these crashes and is looking at the impacts if the current severity weighting is used (based on crash severity) or if a higher weighting is used since a preventability decision has been made. When crashes are determined to be “Preventable,” the crash is still listed on the Agency’s websites with a note that reads, “FMCSA reviewed this crash and determined that it was preventable.”
- Undecided – In these cases, the documentation submitted did not allow for a conclusive decision by reviewers. When crash reviews are undecided, the crash is not removed from SMS and the severity weighting is unchanged. The crash will still be listed on the Agency’s websites with a note that reads, “FMCSA reviewed this crash and could not make a preventability determination based on the evidence provided.”
Q: What if the motor carrier, driver, or vehicle involved had an out of service violation at the time of the crash?
In keeping with the Agency’s current preventability guidance, if a post-crash inspection determines that the motor carrier, vehicle, or driver was in violation of an out-of-service regulation at the time of the crash, the crash will be determined to have been “Preventable.”
Q: Would the Agency still complete preventability reviews during investigations?
Under this demonstration program, the Agency would continue to make crash preventability determinations before issuing adverse safety ratings based on crashes, and the appropriate changes to the websites, as described above, would be made. Finally, this process would also apply to any crashes challenged under 49 CFR 385.15 that were determined to be “not preventable.”
Q: Would there be an appeals process?
The public, including motor carriers and drivers, would be allowed to appeal the RDR decision to FMCSA using the DataQs system and processes currently in place.
Q: What happens if a carrier submits a fraudulent request?
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 punishable by a fine of not more than $10,000.00 or imprisonment for not more than 5 years, or both (18 USC 1001).
Q: How does this demonstration program impact the Safety Fitness Determination (SFD) Notice of Proposed Rulemaking?
The SFD proposal would only use crashes that been reviewed for preventability in any proposed unfit rating, consistent with current practices and, therefore, it is not impacted by this program which only will affect crashes displayed on the Agency’s SMS website.
FAST Act: Overview
- Enacted on December 4, 2015 (PL 114-94)
- Five year bill that sets FMCSA authorization funding levels through FY 2020.
- MCSAP grant programs will be restructured beginning in FY 2017 along with an increase in MCSAP funding.
- Operating expense authorization levels slightly increased through FY 2020.
- Significant number of Agency mandates:
- Studies: 5
- Working Groups: 6
- Rulemaking: 20
- FMCSA Reports to Congress: 15
FAST Act: Rulemakings
- 5106(b) MCSAP Allocation
- 5301 Windshield Technology
- 5401(a) Opportunities for Veterans Interim Final Rule
- 5401(c) Opportunities for Veterans
- 5402 (a) Drug Free Commercial Drivers
- 5403 Medical Certification of Veterans
- 5107(c) Maintenance of Effort Calculation
- 5501(b) Delays in Goods Movement
- 5107(a) Maintenance of Effort Calculation
- 7208 Hazardous Materials Endorsement
- 5206(b)(1) Applications
- 5524 Welding Truck Exemptions
- 5519 Operators of High Rail Vehicles
- 5521 Ready Mix Concrete Vehicles
- 5518 Covered Farm Vehicles
- 5522 Transportation of Construction Materials and Equipment
- 5507 Electronic Logging Device Requirements
- 5205 Inspector Standards
- 5101(a) Grants to States
- 5206(a) Applications
FAST Act: Compliance, Safety, Accountability
The FAST Act requires the National Research Council of the National Academies of Science (NAS) to conduct a thorough study of the Compliance, Safety, Accountability (CSA) program, specifically the Safety Measurement System (SMS).
Study Requirements
NAS will conduct an independent correlation study of SMS. The FAST Act has outlined several elements that NAS must analyze and/or consider, including:
- The accuracy with which the Behavior Analysis and Safety Improvement Categories (BASIC) identify high risk carriers; and predict or are correlated with future crash risk, crash severity, or other safety indicators for motor carriers, including the high risk carriers;
- The methodology used to calculate BASIC percentiles and identify carriers for enforcement, including the weights assigned to particular violations and the tie between crash risk and specific regulatory violations, with respect to accurately identifying and predicting future crash risk for motor carriers;
- The relative value of inspection information and roadside enforcement data;
- Any data collection gaps or data sufficiency problems that may exist and the impact of those gaps and problems on the efficacy of the CSA program;
- The accuracy of safety data, including the use of crash data from crashes in which a motor carrier was free from fault;
- Whether BASIC percentiles for motor carriers of passengers should be calculated separately from motor carriers of freight;
- The difference in the rates at which safety violations are reported to FMCSA for inclusion in the SMS by various enforcement authorities, including States, territories, and Federal inspectors;
- How members of the public use the SMS and what effect making the SMS information public has had on reducing crashes and eliminating unsafe motor carriers from the industry;
- Whether the SMS provides comparable precision and confidence, through SMS alerts and percentiles, for the relative crash risk of individual large and small motor carriers;
- Whether alternatives to the SMS would identify high risk carriers more accurately; and
- The recommendations and findings of the Comptroller General of the United States and the Inspector General of the Department and independent review team reports, issued before the date of enactment of the FAST Act.
For further information about the SMS Correlation Study, see the National Academies of Sciences webpage: http://www.trb.org/PolicyStudies/ReviewFederalMotorCarrierSafety.aspx [external link] .
Within 18 months of the enactment of the FAST Act, FMCSA will submit the results of this study to both Congress and the Department of Transportation’s (DOT) Office of Inspector General. The results will also be published on a publicly-accessible Department of Transportation website.
Post-Study Requirements: If the study report identifies a deficiency or opportunity for improvement, FMCSA will submit a corrective action plan to Congress that will be reviewed by the Inspector General of the Department.
Public Availability of SMS Alerts and Percentiles: As required by Section 5223 of the FAST Act, FMCSA has removed alerts and relative percentiles for property carriers from the public display of the SMS. FMCSA is prohibited from publishing this information until the SMS Correlation Study is complete, and all reporting requirements and certification requirements under the FAST Act are satisfied.
Outcomes: A report to Congress containing study findings; study findings should also be published on a publicly accessible Web site.
Milestones: February 2016: Contract awarded
June 2017: Report to Congress; report published on publicly accessible Web site
Funding: FY 2016: $971,519
Current Status: Project is on schedule. For more details, visit: http://www.trb.org/PolicyStudies/ReviewFederalMotorCarrierSafety.aspx [external link].
Project Manager: For more information, contact Albert Alvarez of the FMCSA Research Division at (202) 385-2387 or albert.alvarez@dot.gov
Contractor:National Research Council of the National Academy of Sciences
FAST Act: Working Groups
The FAST Act calls for the Federal Motor Carrier Safety Administration to establish several working groups to assist the Agency’s implementation efforts. Working groups required by the FAST Act include:
- MCSAP Allocation Formula (FAST Section 5106(a)(1))
- Purpose: To analyze requirements and factors necessary for the establishment of a new allocation formula for the Motor Carrier Safety Assistance Program (MCSAP) and issue a recommendation to the Secretary regarding a new allocation formula for the MCSAP.
- Membership: Representatives from FMCSA, State commercial motor vehicle safety agencies, an organization representing State agencies responsible for inspection of commercial motor vehicles; and such other persons as the Secretary considers necessary.
- Preventable Crashes (FAST Section 5225)
- Purpose: The establishment of this working group is tied to the FAST Act Safety Measurement System (SMS) Correlation Study. No later than 1 year after the Inspector General certifies that the conditions of FAST Act Section 5223(a) are met, the Secretary shall task the Motor Carrier Safety Advisory Committee (MCSAC) with reviewing the treatment of preventable crashes under SMS. The working group will make recommendations to the Secretary on a process to allow motor carriers and drivers to request that the Administrator make a determination with respect to the preventability of a crash if such a process has not yet been established, and issue a report to Congress on how the Secretary intends to address the treatment of preventable crashes.
- Membership: The MCSAC is comprised of 20 members appointed by the Administrator for two-year terms and includes representatives of the motor carrier safety advocacy, safety enforcement, industry, and labor communities.
- Post-Accident Report (FAST Section 5306(a))
- Purpose: Review the data elements of post-accident reports, for tow-away accidents involving commercial motor vehicles that are reported to the Federal Government; and to report to the Secretary its findings, including best practices for State post-accident reports.
- Membership: Not less than 51 percent of the working group shall be composed of individuals representing the States or State law enforcement officials. The remaining members of the working group shall represent industry, labor, safety advocates, and other interested parties.
- Military Commercial Driver Pilot Program (FAST Section 5404)
- Purpose: To review the data collected by the Agency in its military commercial driver pilot program and provide recommendations to the Secretary on the feasibility, benefits, and safety impacts of allowing a covered driver to operate a commercial motor vehicle in interstate commerce.
- Membership: Representatives of the Agency, armed forces, industry, drivers, safety advocacy organizations, and State licensing and enforcement officials.
- Household Goods Consumer Protection Working Group (FAST Section 5503)
- Purpose: To develop recommendations on how to best convey to consumers relevant information with respect to Federal laws concerning the interstate transportation of household goods by motor carrier.
- Membership: Representatives of the Agency, individuals with expertise in consumer affairs, educators with expertise in how people learn most effectively, and representatives of the household goods moving industry.
FAST Act: Authorization Levels
| |
FY16 |
FY17 |
FY18 |
FY19 |
FY20 |
| MCSAP |
*$218,000,000 |
$292,600,000 |
$298,900,000 |
$304,300,000 |
$308,700,000 |
| High Priority Activities Program |
** $15,000,000 |
$42,200,000 |
$43,100,000 |
$44,000,000 |
$44,900,000 |
| CMV Operators |
***$1,000,000 |
$1,000,000 |
$1,000,000 |
$1,000,000 |
$1,000,000 |
| CDLPI |
$30,000,000 |
$31,200,000 |
$31,800,000 |
$32,500,000 |
$33,200,000 |
| CVISN |
$25,000,000 |
Collapses into High Priority Activities FY17-20 |
| BEG |
$32,000,000 |
Collapses into MCSAP FY17-20 |
| New Entrant |
**$32,000,000 |
Collapses into MCSAP FY17-20 |
| PRISM |
$5,000,000 |
Collapses into MCSAP FY17-20 |
| SADIP |
$3,000,000 |
Collapses into MCSAP FY17-20 |
FAST Act: Reports
Truckers, suppliers concerned about self-certification process, compliance
Jun 23, 2016 Aaron Marsh American Trucker
With about a year and a half left before most U.S. trucks will need to have some sort of electronic logging device, or ELD, just five vendors have added their products the Federal Motor Carrier Safety Administration’s list of compliant devices. None yet are the big-name providers of electronic driver log recording instruments that conform to FMCSA’s requirements in place for Automatic On-board Recording Devices, or AOBRDs, which are the current option to paper logs and a precursor to the mandated ELDs.
Complicating matters, trucking companies and some technology vendors have expressed concern about whether the self-certified products truly will be compliant with the ELD final rule’s requirements, and Elise Chianelli, director of safety and compliance at fleet management technology company PeopleNet, spells out three things truckers should be aware of regarding where that process is now.
“In terms of the industry, I think it’s going to be year’s end or into next year before you really start to see a lot of credible names pop up” in the self-certified compliant ELD list, Chianelli says.
1. Certain FMCSA software/systems relating to ELD compliance aren’t yet available.
If the Department of Transportation (DOT) shows up after the Dec. 18, 2017 ELD compliance deadline to audit a carrier’s driver logs, either a driver will provide needed info to authorities at the roadside or the carrier will provide info from the back office to auditors. Chianelli says FMCSA will then take the information collected and run it through what the agency is calling its “ERODS,” or Electronic Record of Duty Status, system to determine compliance with federal Hours of Service regulations.
“At this point, FMCSA has not yet released access to ERODS. There’s been rumors we may not see that until the latter half of this year,” she notes. “So in terms of being able to bring a compliant product to market, we’re unsure how [an ELD provider] would know now that they are or are not compliant before they know that what they’re showing for hours of service available matches what FMCSA shows for hours of service available.”
2. Information required for one of the four ELD information transfer methods FMCSA specified also is not yet available.
FMCSA has outlined that ELDs will be able to transfer their data via web service, email, Bluetooth connectivity or USB 2.0 connection, Chianelli points out. However, for the “web services” transfer method, “FMCSA has not yet published where we would post the files to,” she says. “The web services URL has not yet been provided.”
“We at PeopleNet feel we will need to have access to these systems to ensure that when we release our ELD product, yes, it is indeed compliant with all the different specifications,” she adds.
3. FMCSA has published a 400-plus-page document of ELD test cases that is optional for vendors to use in developing their ELD products.
In terms of what is available now, FMCSA published a 440-page document in late April containing ELD test cases and procedures, Chianelli notes. FMCSA states that “although use of the ELD test procedures set forth in this document is not binding on ELD providers . . . FMCSA would use these test procedures to evaluate compliance if the Agency decides to undertake an independent evaluation of an ELD that has been certified by the provider.”
So in other words, “if there is an audit of your [ELD] solution, those test cases are what they (FMCSA) would use in order to determine compliance,” says Chianelli. “FCMSA has stated that you can use the test cases they’ve provided to ensure your product is in compliance, but you don’t have to.
“At the end of the day, this is definitely an area where we feel it’s very important for carriers to do their research and due diligence before making that purchase decision,” she continues. “They need to make sure they’re partnering with the right people who understand the complexities involved” when it comes to ELDs.
Advice for now?
Again, Chianelli emphasizes that PeopleNet and many of the company’s peers in the ELD provider community aren’t likely to self-certify their ELD products until later this year or into 2017.
“And remember, that’s when and if FMCSA grants access to these other applications or pieces of information that will be required,” she notes.
While there are five companies to date that officially claim their products are compliant with the ELD final rule, Chianelli says FMCSA is expecting perhaps four or five times that many vendors ultimately will have products on the self-certified list.
