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.