Crash Preventability Demonstration Program, 35045-35050 [2017-15833]
Download as PDF
<![CDATA[
Federal Register / Vol. 82, No. 143 / Thursday, July 27, 2017 / Notices
tractor-trailer combinations for 39 years,
accumulating 780,000 miles. He holds a
Class AM CDL from Illinois. His driving
record for the last three years shows no
crashes and no convictions for moving
violations in a CMV.
Dennis R. Jones
Mr. Jones, 55, has aphakia in his left
eye due to a traumatic incident in 2007.
The visual acuity in his right eye is 20/
15, and in his left eye, 20/150.
Following an examination in 2017, his
ophthalmologist stated, ‘‘In my medical
opinion Mr. Jones has sufficient vision
to perform to perform [sic] the driving
tasks required to operate a commercial
vehicle as defined by requirements
found in Federal Register Vol. 78, No.
243 page 76591, (6)–(9).’’ Mr. Jones
reported that he has driven straight
trucks for six years, accumulating
300,000 miles, and tractor-trailer
combinations for seven years,
accumulating 350,000 miles. He holds a
Class A CDL from Texas. His driving
record for the last three years shows no
crashes and no convictions for moving
violations in a CMV.
Rufus L. Jones
Mr. Jones, 59, has a retinal scar in his
right eye due to a traumatic incident in
childhood. The visual acuity in his right
eye is 20/80, and in his left eye, 20/20.
Following an examination in 2016, his
ophthalmologist stated, ‘‘In my opinion,
he has sufficient vision to perform the
driving tasks required to operate a
commercial vehicle.’’ Mr. Jones reported
that he has driven straight trucks for
four years, accumulating 144,000 miles,
and buses for seven years, accumulating
700,000 miles. He holds a Class B CDL
from New Jersey. His driving record for
the last three years shows one crash and
no convictions for moving violations in
a CMV.
mstockstill on DSK30JT082PROD with NOTICES
Derek J. Savko
Mr. Savko, 35, has optic nerve
atrophy in his left eye due to a traumatic
incident in childhood. The visual acuity
in his right eye is 20/20, and in his left
eye, no light perception. Following an
examination in 2016, his
ophthalmologist stated, ‘‘It is my
opinion that he has sufficient vision in
the right eye to perform his driving tasks
as required to operate a commercial
vehicle.’’ Mr. Savko reported that he has
driven straight trucks for 13 years,
accumulating 162,500 miles. He holds a
Class B CDL from Montana. His driving
record for the last three years shows no
crashes and no convictions for moving
violations in a CMV.
VerDate Sep<11>2014
19:17 Jul 26, 2017
Jkt 241001
John J. Tilton
Mr. Tilton, 47, has a prosthetic right
eye due to a traumatic incident in 1986.
The visual acuity in his right eye is no
light perception, and in his left eye, 20/
20. Following an examination in 2017,
his ophthalmologist stated, ‘‘In my
medical opinion, John’s visual acuity,
Visual Field [sic], and color vision show
that he can continue to perform driving
tasks required to operate a commercial
vehicle.’’ Mr. Tilton reported that he has
driven straight trucks for three years,
accumulating 25,000 miles. He holds a
Class B CDL from New Hampshire. His
driving record for the last three years
shows no crashes and no convictions for
moving violations in a CMV.
Randy D. VanScoy
Mr. VanScoy, 60, has had amblyopia
in his left eye since birth. The visual
acuity in his right eye is 20/20, and in
his left eye, 20/200. Following an
examination in 2017, his optometrist
stated, ‘‘Diagnosis congenital
amblyopia. This patient meets the
requirements to drive a commercial
vehicle. He shows no deficit in his
visual field.’’ Mr. VanScoy reported that
he has driven tractor-trailer
combinations for 42 years, accumulating
3.1 million miles. He holds a Class A
CDL from Iowa. His driving record for
the last three years shows no crashes
and no convictions for moving
violations in a CMV.
III. Request for Comments
In accordance with 49 U.S.C. 31136(e)
and 31315, FMCSA requests public
comment from all interested persons on
the exemption petitions described in
this notice. We will consider all
comments and material received before
the close of business on the closing date
indicated in the dates section of the
notice.
IV. Submitting Comments
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 that FMCSA can contact you if there
are questions regarding your
submission.
To submit your comment online, go to
https://www.regulations.gov and in the
search box insert the docket number
FMCSA–2017–0019 and click the search
button. When the new screen appears,
click on the blue ‘‘Comment Now!’’
button on the right hand side of the
page. On the new page, enter
information required including the
PO 00000
Frm 00123
Fmt 4703
Sfmt 4703
35045
specific section of this document to
which each comment applies, and
provide a reason for each suggestion or
recommendation. If you submit your
comments by mail or hand delivery,
submit them in an unbound format, no
larger than 81⁄2 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, selfaddressed postcard or envelope.
We will consider all comments and
material received during the comment
period. FMCSA may issue a final
determination at any time after the close
of the comment period.
V. Viewing Comments and Documents
To view comments, as well as any
documents mentioned in this preamble,
go to https://www.regulations.gov and in
the search box insert the docket number
FMCSA–2017–0019 and click ‘‘Search.’’
Next, click ‘‘Open Docket Folder’’ and
you will find all documents and
comments related to this notice.
Issued on: July 19, 2017.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2017–15842 Filed 7–26–17; 8:45 am]
BILLING CODE 4910–EX–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[Docket No. FMCSA–2014–0177]
Crash Preventability Demonstration
Program
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice.
AGENCY:
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.
SUMMARY:
E:\FR\FM\27JYN1.SGM
27JYN1
35046
Federal Register / Vol. 82, No. 143 / Thursday, July 27, 2017 / Notices
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:
mstockstill on DSK30JT082PROD with NOTICES
DATES:
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
VerDate Sep<11>2014
19:17 Jul 26, 2017
Jkt 241001
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
PO 00000
Frm 00124
Fmt 4703
Sfmt 4703
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.
E:\FR\FM\27JYN1.SGM
27JYN1
Federal Register / Vol. 82, No. 143 / Thursday, July 27, 2017 / Notices
mstockstill on DSK30JT082PROD with NOTICES
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
VerDate Sep<11>2014
19:17 Jul 26, 2017
Jkt 241001
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
PO 00000
Frm 00125
Fmt 4703
Sfmt 4703
35047
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
E:\FR\FM\27JYN1.SGM
27JYN1
mstockstill on DSK30JT082PROD with NOTICES
35048
Federal Register / Vol. 82, No. 143 / Thursday, July 27, 2017 / Notices
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 reoccurring. 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.
VerDate Sep<11>2014
19:17 Jul 26, 2017
Jkt 241001
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 NonResponse’’ 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
PO 00000
Frm 00126
Fmt 4703
Sfmt 4703
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/crashpreventability-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/crashpreventability-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
E:\FR\FM\27JYN1.SGM
27JYN1
Federal Register / Vol. 82, No. 143 / Thursday, July 27, 2017 / Notices
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.
mstockstill on DSK30JT082PROD with NOTICES
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
VerDate Sep<11>2014
19:17 Jul 26, 2017
Jkt 241001
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.
PO 00000
Frm 00127
Fmt 4703
Sfmt 4703
35049
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
E:\FR\FM\27JYN1.SGM
27JYN1
35050
Federal Register / Vol. 82, No. 143 / Thursday, July 27, 2017 / Notices
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]
BILLING CODE 4910–EX–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[Docket No. FMCSA–2017–0018]
Qualification of Drivers; Exemption
Applications; Vision
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
AGENCY:
ACTION:
Notice of final disposition.
FMCSA announces its
decision to exempt ten individuals from
the vision requirement in the Federal
Motor Carrier Safety Regulations
(FMCSRs). They are unable to meet the
vision requirement in one eye for
various reasons. The exemptions will
enable these individuals to operate
commercial motor vehicles (CMVs) in
interstate commerce without meeting
the prescribed vision requirement in
one eye. The Agency has concluded that
granting these exemptions will provide
a level of safety that is equivalent to or
greater than the level of safety
maintained without the exemptions for
these CMV drivers.
SUMMARY:
The exemptions were granted
June 27, 2017. The exemptions expire
on June 27, 2019.
DATES:
Ms.
Christine A. Hydock, Chief, Medical
Programs Division, (202) 366–4001,
fmcsamedical@dot.gov, FMCSA,
Department of Transportation, 1200
New Jersey Avenue SE., Room W64–
113, Washington, DC 20590–0001.
Office hours are 8:30 a.m. to 5 p.m.,
E.T., Monday through Friday, except
Federal holidays. If you have questions
regarding viewing or submitting
material to the docket, contact Docket
Services, telephone (202) 366–9826.
mstockstill on DSK30JT082PROD with NOTICES
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
VerDate Sep<11>2014
19:17 Jul 26, 2017
Jkt 241001
I. Electronic Access
You may see all the comments online
through the Federal Document
Management System (FDMS) at https://
www.regulations.gov.
Docket: For access to the docket to
read background documents or
comments, go to https://
www.regulations.gov and/or 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., E.T., Monday through
Friday, except Federal holidays.
Privacy Act: In accordance with 5
U.S.C. 553(c), DOT solicits comments
from the public to better inform its
rulemaking process. 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.
II. Background
On May 26, 2017, FMCSA published
a notice of receipt of exemption
applications from certain individuals,
and requested comments from the
public (82 FR 24430). That notice listed
ten applicants’ case histories. The ten
individuals applied for exemptions from
the vision requirement in 49 CFR
391.41(b)(10), for drivers who operate
CMVs in interstate commerce.
Under 49 U.S.C. 31136(e) and 31315,
FMCSA may grant an exemption for a
two year period if it finds ‘‘such
exemption would likely achieve a level
of safety that is equivalent to or greater
than the level that would be achieved
absent such exemption.’’ The statute
also allows the Agency to renew
exemptions at the end of the two year
period. Accordingly, FMCSA has
evaluated the ten applications on their
merits and made a determination to
grant exemptions to each of them.
III. Vision and Driving Experience of
the Applicants
The vision requirement in the
FMCSRs provides:
A person is physically qualified to
drive a commercial motor vehicle if that
person has distant visual acuity of at
least 20/40 (Snellen) in each eye
without corrective lenses or visual
acuity separately corrected to 20/40
(Snellen) or better with corrective
lenses, distant binocular acuity of a least
20/40 (Snellen) in both eyes with or
without corrective lenses, field of vision
of at least 70° in the horizontal meridian
in each eye, and the ability to recognize
the colors of traffic signals and devices
showing red, green, and amber (49 CFR
391.41(b)(10)).
PO 00000
Frm 00128
Fmt 4703
Sfmt 4703
FMCSA recognizes that some drivers
do not meet the vision requirement but
have adapted their driving to
accommodate their limitation and
demonstrated their ability to drive
safely. The ten exemption applicants
listed in this notice are in this category.
They are unable to meet the vision
requirement in one eye for various
reasons, including amblyopia, complete
loss of vision, congenital cataract,
corneal transplant, macular scar, optic
neuropathy, and prosthetic eye. In most
cases, their eye conditions were not
recently developed. Five of the
applicants were either born with their
vision impairments or have had them
since childhood.
The five individuals that sustained
their vision conditions as adults have
had it for a range of 10 to 47 years.
Although each applicant has one eye
which does not meet the vision
requirement in 49 CFR 391.41(b)(10),
each has at least 20/40 corrected vision
in the other eye, and in a doctor’s
opinion, has sufficient vision to perform
all the tasks necessary to operate a CMV.
Doctors’ opinions are supported by the
applicants’ possession of valid
commercial driver’s licenses (CDLs) or
non-CDLs to operate CMVs. Before
issuing CDLs, States subject drivers to
knowledge and skills tests designed to
evaluate their qualifications to operate a
CMV.
All of these applicants satisfied the
testing requirements for their State of
residence. By meeting State licensing
requirements, the applicants
demonstrated their ability to operate a
CMV, with their limited vision, to the
satisfaction of the State.
While possessing a valid CDL or nonCDL, these ten drivers have been
authorized to drive a CMV in intrastate
commerce, even though their vision
disqualified them from driving in
interstate commerce. They have driven
CMVs with their limited vision in
careers ranging for 5 to 35 years. In the
past three years, no drivers were
involved in crashes and no drivers were
convicted of moving violations in a
CMV.
The qualifications, experience, and
medical condition of each applicant
were stated and discussed in detail in
the May 26, 2017, notice (82 FR 24430).
IV. Basis for Exemption Determination
Under 49 U.S.C. 31136(e) and 31315,
FMCSA may grant an exemption from
the vision requirement in 49 CFR
391.41(b)(10) if the exemption is likely
to achieve an equivalent or greater level
of safety than would be achieved
without the exemption. Without the
exemption, applicants will continue to
E:\FR\FM\27JYN1.SGM
27JYN1
]]>Agencies
[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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]
BILLING CODE 4910-EX-P
