Crash Preventability Determination Program, 27017-27022 [2020-09679]

Download as PDF Federal Register / Vol. 85, No. 88 / Wednesday, May 6, 2020 / Notices BILLING CODE 3290–F0–C Mr. Catterson Oh, Compliance Division, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590, (202) 366–6160, Catterson.Oh@dot.gov. If you have questions regarding viewing or submitting material to the docket, contact Docket Operations, (202) 366– 9826. FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA–2014–0177] Crash Preventability Determination Program SUPPLEMENTARY INFORMATION: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice. AGENCY: Background On July 27, 2017, FMCSA announced a demonstration program to evaluate the preventability of eight categories of crashes through submissions of Requests for Data Review to its national data correction system known as DataQs. On August 5, 2019, based on experiences with the demonstration program, FMCSA proposed a Crash Preventability Determination Program with a streamlined process. FMCSA proposed to modify the Safety Measurement System to exclude crashes with not preventable determinations from the prioritization algorithm and proposed noting the not preventable determinations in the Pre-Employment Screening Program. This notice responds to comments received on the proposal and announces the start of the SUMMARY: VerDate Sep<11>2014 19:08 May 05, 2020 Jkt 250001 Since its implementation in 2010, FMCSA’s Safety Measurement System (SMS) has used safety performance information in the Behavior Analysis and Safety Improvement Categories (BASICs), in addition to recordable crashes involving commercial motor vehicles (CMVs), to prioritize carriers for safety interventions (75 FR 18256). The Crash Indicator BASIC uses crashes from the previous 24 months to calculate percentiles for motor carriers. In addition, the public SMS website lists motor carriers’ recordable crashes. Although the Crash Indicator BASIC percentiles have never been publicly available, stakeholders have expressed concern that the use of all crashes in SMS, without an indication of preventability, may give an inaccurate impression about the risk posed by the company. PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 In response to this concern, FMCSA announced a demonstration program on July 27, 2017, to evaluate the preventability of certain categories of crashes (82 FR 35045). Based on its experience in conducting the demonstration program, and the strong support for continuing and expanding this program, FMCSA is initiating the Crash Preventability Determination Program (CPDP) as described in this notice. Through this program, motor carriers and drivers may submit eligible crashes for preventability determinations through FMCSA’s DataQs system. FMCSA will remove crashes that were not preventable by the motor carrier or driver from the SMS prioritization algorithm. FMCSA will also note the not preventable determinations in the driver’s PreEmployment Screening Program (PSP) record and will note not preventable, preventable, and undecided determinations in the motor carrier’s list of crashes on the public SMS website. Implementation Proposal General Comments FMCSA received 111 comments to this docket. More than 90 commenters supported the proposal and the Agency’s plan to continue the program. Many noted their support of the expansion of eligible crash types. Gregory Cohen advised that Greyhound Lines, Inc., participated in the demonstration program and supports E:\FR\FM\06MYN1.SGM 06MYN1 EN06MY20.004</GPH> Agency’s new Crash Preventability Determination Program. [FR Doc. 2020–09653 Filed 5–5–20; 8:45 am] 27017 27018 Federal Register / Vol. 85, No. 88 / Wednesday, May 6, 2020 / Notices the continuation of the program. Dave Guyer, Cindy Staten, Dave Fisher, Scott Conklin, and several anonymous commenters advised the program should be maintained. Associations including the Owner Operator Independent Drivers Association (OOIDA), the American Trucking Associations, the International Foodservice Distributors Association, National School Transportation Association, and Truckload Carriers Association supported the proposal. Thirteen commenters, including the Motor Carrier Regulatory Reform Coalition (MCRRC) and the National Association of Small Trucking Companies (NASTC), opposed the program. Both MCRRC and NASTC requested that the proposed changes be made through notice and comment rulemaking. MCRRC detailed this request by additional letters to FMCSA’s Administrator dated June 14 and September 5, 2019, and requested an extension of the comment period by letter dated September 13, 2019. FMCSA posted these letters to this docket and considered the June 14 letter as part of MCRRC’s comments. MCRRC and NASTC expressed concern that preventability would be conflated with fault, and that this confusion may cause negative impacts to insurance rates and outcomes in private litigation. MCCRC and NASTC stated that the program would cause unfair harm to small carriers. The Commercial Vehicle Safety Alliance (CVSA) expressed multiple concerns, including issues with the new crash types, reviewers’ qualifications, Federalism impacts, and the impact of an FMCSA not preventable determination on a State’s criminal charges. The Insurance Institute of Highway Safety (IIHS) indicated the program does not improve safety and recommended FMCSA incentivize best practices and reward carriers’ investments in safety. The other commenters either asked questions or provided comments that made it difficult to discern their position on the proposal. FMCSA Response FMCSA declined to extend the comment period in response to MCRRC’s September 13, 2019, request because MCRRC failed to show good cause for its request. FMCSA has provided ample notice and opportunities to comment throughout the development of this program, from the publication of its initial crash weighting analysis in 2015 (80 FR 3719), through the announcement of the demonstration program in 2017 (82 FR VerDate Sep<11>2014 19:08 May 05, 2020 Jkt 250001 35045), and the 2019 proposal to implement this program (84 FR 38087). At each stage, FMCSA has solicited, considered, and responded to public comments. This program does not amend any prior legislative rules nor does it provide a basis for any new enforcement actions, and does not require a notice and comment rulemaking under the Administrative Procedure Act (49 U.S.C. 551, 553). This program does not alter FMCSA’s safety fitness standard under 49 U.S.C. 31144 and 49 CFR part 385. As expressly stated on the SMS website, FMCSA uses SMS data to prioritize motor carriers for further monitoring, and data ‘‘is not intended to imply any federal safety rating of the carrier pursuant to 49 U.S.C. 31144.’’ This program does not impact preventability determinations made through FMCSA safety investigations conducted under 49 CFR part 385, nor the preventability standard contained therein. The crash preventability determinations made under this program thus 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, and the determinations do not establish any obligations or impose legal requirements on any motor carrier. These determinations also will not change how the Agency will make enforcement decisions. FMCSA emphasizes that these determinations do not establish legal liability, fault, or negligence by any party. 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 is not a proceeding to assign legal liability for a crash. Under 49 U.S.C. 504(f), FMCSA’s preventability determinations may not be admitted into evidence or used in a civil action for damages and are not reliable for that purpose. In response to MCRRC’s and NASTC’s concerns about the potential conflation of preventability and fault, and CVSA’s concern about the impact on State criminal proceedings, FMCSA added a disclaimer to the SMS website that states: A crash preventability determination does not assign fault or legal liability for the crash. These determinations are made on the basis of information available to FMCSA by persons with no personal knowledge of the crash and are not reliable evidence in a civil or criminal action. Under 49 U.S.C. 504(f), these determinations are not admissible in a civil action for damages. The absence of a not PO 00000 Frm 00096 Fmt 4703 Sfmt 4703 preventable determination does not indicate that a crash was preventable. In addition, FMCSA will continue to include the following text in its determination notifications to submitters, which it included during the demonstration program: FMCSA made this crash preventability determination on the basis of information available to the Agency at the time of the determination, and it is not appropriate for use by private parties in civil litigation. This determination does not establish legal liability, fault, or negligence by any party and was made by persons with no personal knowledge of the crash. This crash preventability determination will not affect any motor carrier’s safety rating or ability to operate. FMCSA will not issue penalties or sanctions on the basis of this determination. This crash preventability determination does not establish any obligations or impose any legal requirements on any motor carrier. FMCSA addresses the impact of the program on small carriers in the ‘‘Effectiveness Analysis’’ section below. In response to IIHS’s comments, FMCSA acknowledges that the demonstration program was a first step in examining the impacts of preventability determinations on SMS with a small data set. Continuing the program and expanding crash types will allow FMCSA to continue to conduct analysis with more crashes. Regarding reviewer qualifications, FMCSA reviewed nearly 15,000 police accident reports (PAR) during the demonstration program. Eligible crashes will continue to reviewed by two reviewers and 10 percent of the crashes will also be reviewed for quality control. FMCSA recognizes that the law enforcement who respond to the crash have the most information on the event. That is why the CPDP requirements include submission of the PAR. Additionally, the Agency notes that the eligble crash types for the CPDP continue to be generally less complex crash events. In response to IIHS’ suggestion to incentivize best practices, the Agency notes that its preventability standard at 49 CFR 385, Appendix B, assesses if a driver exercising normal judgment and foresight could have avoided the crash by taking steps within his/her control without causing another kind of mishap. The CPDP already takes into account whether the driver or vehicle was operating in violation of an out of service regulation at the time of the crash, which encourages carrier-wide best practices. The PAR generally does not contain sufficient information to account for best practices in the manufacturing of vehicles at this time. E:\FR\FM\06MYN1.SGM 06MYN1 Federal Register / Vol. 85, No. 88 / Wednesday, May 6, 2020 / Notices Changes to Eligible Crash Types FMCSA proposed two changes to the original eight crash types. First, FMCSA would combine the crash type involving infrastructure failures and debris with the crash type for CMVs struck by cargo and equipment. The distinction between these two crash types did not result in different determinations and, in some cases, required submitters to resubmit their Requests for Data Review (RDRs) under the other crash type. In addition, FMCSA proposed changing the ‘‘Motorist Under the Influence’’ crash type to ‘‘Individual Under the Influence’’ to include crashes involving pedestrians, bicyclists and others. In the August 2019 notice, FMCSA proposed to test the eight additional crash types. These crashes were frequently submitted during the demonstration program, but did not qualify for one of the original crash types. Comments Victor Van Kuilenburg asked that the Agency review all crashes. Some commenters provided additional crash types for consideration in the program. The National Motor Freight Traffic Association and United Motorcoach Association noted that the proposal made it unclear if unoccupied vehicles were still being included in the crash type that includes parked vehicles. CVSA expressed concern about expanding the crash types because of concerns about the reviewers’ training and experience. Specifically, CVSA said that the additional crash types require higher standards of training and education. CVSA noted the extensive training that crash reconstructionists receive. CVSA also requested clarification of the ‘‘under the influence’’ standard. An anonymous commenter asked if the crash type of ‘‘When the CMV is struck by a driver who experiences a medical issue which causes the crash’’ includes when the CMV driver has the medical issue. OOIDA recommended adding a ‘‘Rare or Unusual Crash’’ type and noted the recent crash between a CMV and a skydiver. FMCSA Response FMCSA supports OOIDA’s proposal for a ‘‘Rare or unusual crash’’ type and added this type to DataQs. However, the Agency expects that most crashes submitted to this type will not meet the standard and will be common, recurring crash types. When this occurs, the RDR will be found to be not eligible and closed upon review. The Agency does VerDate Sep<11>2014 19:08 May 05, 2020 Jkt 250001 not support further expanding the crash types in the program at this time. The proposed new types are a reasonable extension of the demonstration program based on the volume of not eligible crashes submitted and reviewed, and the Agency’s expected ability to determine preventability based on the documentation received from submitters. FMCSA acknowledges that the text to include unattended vehicles was inadvertently omitted from the August 2019 notice and the final list of crashes has been revised to reflect this. In addition, as FMCSA noted in the August 2019 notice, all not preventable crashes will be removed from the calculation of the Crash Indicator BASIC. However, the Agency will analyze the new crash types for 24 months but may announce changes earlier if certain crash types cannot be consistently reviewed. If the new crash types are able to be consistently reviewed, the Agency may consider expanding the program to include additional crash types in the future. Regarding reviewer qualifications, FMCSA is building on its experience in reviewing nearly 15,000 PARs during the demonstration program. Because the eligible crash types are, by design, less complex crash events, FMCSA does not believe these reviews require extensive expertise. In addition, FMCSA has built in a quality control process to ensure the consistency and quality of these reviews. Eligible crashes will continue to be reviewed by two reviewers, and 10 percent of the crashes will also be reviewed for quality control. FMCSA will also require the submission of the PAR because FMCSA recognizes that the law enforcement official who responds to the crash will have the most information on the event. Regarding the ‘‘under the influence’’ standard used, FMCSA is requiring the PAR or other document submitted to demonstrate that the other driver was charged with or arrested for driving under the influence (or a related charge such as operating while intoxicated), document a failed field sobriety test, document a blood alcohol level of .08 for non-CMV drivers or .04 for a CMV driver, or documentation of a refusal to test. To respond to the anonymous question about medical issues, the crash is not eligible if the submitter’s driver was the person with the medical condition. SMS and PSP Changes During the demonstration program, notations of the preventability determinations were made in the motor PO 00000 Frm 00097 Fmt 4703 Sfmt 4703 27019 carrier’s list of crashes on the publicly available SMS website. Crashes were not removed from the calculation of the Crash Indicator BASIC in SMS but the motor carrier was provided an alternative measure and percentile without not preventable crashes. FMCSA proposed that for eligible crashes occurring on or after August 1, 2019, FMCSA would continue to display the crashes with preventability notations in the carrier’s list of crashes on the public SMS website, but would remove crashes with not preventable determinations from the SMS Crash Indicator BASIC calculation. FMCSA would also note the not preventable determinations in the driver’s record in PSP. Comments Numerous commenters supported both the removal of not preventable crashes from SMS entirely and the notation of these crashes on PSP. Lori Fisher, Jeff Loggins, Larry Nestor, and Stacey Johnson and OOIDA all supported removing the not preventable crashes from the SMS calculation. MCRRC and NASTC opposed this change, noting that all other crashes will be ‘‘presumed preventable.’’ FMCSA Response FMCSA is implementing the associated changes to these information systems. The SMS public display is being revised to list not preventable crashes occurring on or after August 1, 2019, separately from other crashes to make it clear they are not included in the Crash Indicator BASIC. The carrier’s list of crashes and the notations associated with not preventable crashes will remain publicly available. Crashes deemed not preventable will not be used to prioritize motor carriers for safety interventions. FMCSA will continue to display one of three determinations for the eligible crashes that it reviews: 1. Reviewed—Not Preventable— ‘‘FMCSA reviewed this crash and determined that it was not preventable.’’ 2. Reviewed —Preventable—‘‘FMCSA reviewed this crash and determined that it was preventable.’’ 3. Reviewed —Undecided—‘‘FMCSA reviewed this crash and could not make a preventability determination based on the evidence provided.’’ Crashes with ‘‘Reviewed— Preventable’’ and ‘‘Reviewed— Undecided’’ will continue to be included in the Crash Indicator BASIC. The absence of a not preventable determination does not indicate that a crash was preventable. The Crash Indicator BASIC percentiles will remain E:\FR\FM\06MYN1.SGM 06MYN1 27020 Federal Register / Vol. 85, No. 88 / Wednesday, May 6, 2020 / Notices available only to motor carriers who log in to view their own data, as well as to FMCSA and law enforcement users. Determination notations for crashes reviewed in the previous demonstration program will remain in SMS for 2 years from the date of the crash. The Agency previously announced that crashes reviewed during the demonstration program would not be removed from the Crash Indicator BASIC, and some carriers may have decided not to participate on that basis. Therefore, crashes reviewed during the demonstration program will not be removed from calculation of the SMS Crash Indicator BASIC but motor carriers will still have access to the alternative measures and percentiles. Crashes remain in SMS for 2 years from the date of the crash and remain in PSP for 5 years from the date of the crash. As a result, FMCSA will not review crashes that are more than 5 years old. End of Demonstration Program and Start of New Program The demonstration program accepted crashes in the eight original eligible crash types that occurred from June 1, 2017, through July 31, 2019. RDRs for these crashes were accepted through September 30, 2019. Comments There were no comments specifically about the end of the demonstration program or start date for the CPDP. With the publication of this notice, FMCSA’s DataQs sytem is available to accept RDRs for the expanded list of eligible crashes occurring on or after August 1, 2019. Public Input Changes FMCSA proposed to cease the 30-day public input period and cease the practice of publishing preliminary not preventable determinations. This change allows RDRs to be closed with not preventable determinations without the 30-day delay and will reduce resources to take additional action on the RDR. In addition, FMCSA proposed to stop publishing a list of not preventable determinations on the Agency’s website. The Agency will continue to publish quarterly statistics, as was done during the demonstration program. Comments Angela Petry, Doug Anonymous, and Greyhound Lines commented that the 30-day public input period should be eliminated. No commenters opposed this change. VerDate Sep<11>2014 19:08 May 05, 2020 Jkt 250001 FMCSA Response FMCSA will discontinue the 30-day public input period in the CPDP. However, as reflected in the August 2019 notice, the Agency will continue to accept information about any crash by email to crash.preventability@dot.gov. Any information received will be fully considered and could result in a change in the determination. Document Requirement FMCSA proposed requiring submitters to provide the complete PAR to participate in the program. Comments MCRRC objected to the Agency’s reliance on PARs in the CPDP because PARs are hearsay that are entitled to little or no weight in a fault or legal liability determination. Alex Scott of Michigan State University stated that the program contradicts FMCSA’s previous position on the sufficiency and reliability of the information in PARs. FMCSA Response The demonstration program did not require any specific documents be submitted with the RDR so that the Agency could determine which documents were the strongest for future use. Based on the more than 14,000 RDRs reviewed, FMCSA determined that the PAR is the best single source of crash information. FMCSA’s experience thoughout the demonstration program was that the majority of PARs submitted contained sufficient detail to complete a preventability review. As noted above, preventability determinations do not assign fault or legal liability for a crash. In addition, FMCSA notes that previous studies of PAR accuracy were based on fatal crashes and were not limited to the generally less complex crash types in the demonstration program. The reviewers will continue to rely on PARs and other documents submitted to conduct the review. Therefore, when submitting RDRs to the CPDP, the submitter must provide the PAR and is encouraged to submit other documentation providing compelling evidence that the crash is eligible and was not preventable. The DataQs system continues to accept documents, photos, and videos that do not exceed 5 MB in formats including MP4, MPG, MKV, AVI, MPEG, and WMV file types. If only the PAR is submitted and it contains conflicting information about the crash (e.g., the narrative is different than the diagram or point of impact information), the crash may found to be not eligible or the determination may be undecided. PO 00000 Frm 00098 Fmt 4703 Sfmt 4703 Process Information FMCSA proposed to develop the functionality in DataQs to allow FMCSA to change the crash type on behalf of the submitter to another eligible crash type, when appropriate. The Agency also proposed streamlining the review process and using only one stage of contract reviewers to provide a recommendation. In addition, FMCSA proposed allowing the contract reviewers to close RDRs for crashes that are not one of the eligible crash types. FMCSA proposed to rely on the Motor Carrier Management Information System (MCMIS) crash report to confirm the driver’s license and medical certification status as part of implementation. FMCSA proposed to continue reviewing post-crash inspection reports and if the inspection shows that the CMV or driver was in violation of an out of service (OOS) regulation under the North American Standard OOS Criteria prior to the crash or that the driver was not properly licensed, the crash will be deemed preventable. In addition, FMCSA proposed to continue to request post-crash drug and alcohol test results when the crash results in a fatality. Comments Several commenters noted that it took longer than expected for RDRs to be reviewed in the demonstration program and supported changes to improve the process. FMCSA Response As a result, FMCSA is implementing these process improvements. However, FMCSA is making one clarification regarding the use of MCMIS to confirm proper licensing on the date of the crash. If this information is missing from the MCMIS report or MCMIS indicates the wrong license class for the vehicle being operated, the Commercial Driver’s License Information System report will be used to verify the driver’s license. If the driver has renewed his/ her license and/or medical certificate since the date of the crash, evidence of licensing and/or medical certification on the date of the crash will be requested from the submitter. Failure to provide this information will continue to preclude a not preventable determination and will result in an undecided determination. If documentation shows that the driver was not qualified, the crash will be deemed preventable. If drug and alcohol testing results, or the required explanation of why the tests were not completed, are not submitted, this will also preclude a not E:\FR\FM\06MYN1.SGM 06MYN1 Federal Register / Vol. 85, No. 88 / Wednesday, May 6, 2020 / Notices preventable determination and will result in an undecided determination. If the drug and/or alcohol test results were positive, the crash will be deemed preventable. FMCSA will continue to make preventable determinations if there is evidence that the driver and/or carrier was legally prohibited from operating the CMV at the time of the crash. Specfically, if a post-crash inspection identifies a driver or vehicle violation of an OOS regulation and the violation existed before the crash and was not attributed to the crash, or if the MCMIS crash report or other documents reviewed as part of the determination indicate that the driver was not qualified to drive on the date of the crash, the crash is not eligible for a not preventable determination because the driver and/or carrier were legally prohibited from operating the CMV at the time of the crash. Also, to improve program efficiencies and facilitate postings with SMS, the updated DataQs system will not allow a submitter to complete the process if there is not a MCMIS crash report submitted by the State. However, the submitter may enter the required information and save the RDR in DataQs and then submit once the crash is in MCMIS. A State’s delay in submitting the crash to FMCSA does not delay the removal of a not preventable crash from SMS because SMS uses only crashes that are in MCMIS. Effectiveness Analysis During the demonstration program, 4,089 unique motor carriers submitted more than 14,700 RDRs. FMCSA conducted an analysis of the 2-year demonstration program and a copy is in the docket. For purposes of the updated analysis, FMCSA looked at the data for the 2,124 participating carriers that had at least one crash determined to be not preventable. The report includes three primary analyses: (1) Summary of safety profiles of carriers that participate in the program; (2) impact on carriers’ Crash Indicator BASIC percentiles; and (2) impact on SMS effectiveness. The first analysis found that participating carriers are more likely to be large combination carriers (greater than 51 Power Units (PU)), have more inspections per PU, and have a crash risk that does not differ from nonparticipants. The second analysis found that, on average, carriers with not preventable crashes removed have a percentile drop of 9 points in the recalculated Crash Indicator BASIC. Only a small number of carriers change alert status in the Crash Indicator BASIC—out of both participating and VerDate Sep<11>2014 19:08 May 05, 2020 Jkt 250001 non-participating carriers, 134 carriers gain alert status and 136 carriers lose alert status as a result of excluding not preventable crashes from the Crash Indicator BASIC. The third analysis found that removing not preventable crashes from the Crash Indicator BASIC should not have an impact on the effectiveness of FMCSA’s prioritization programs (SMS, High-Risk). This is due to the relatively low number (about 2%) of crashes determined to be not preventable and removed from the calculation. In conclusion, the evaluation of the effectiveness of the demonstration program found that while carriers who have had not preventable crashes removed via the demonstration program saw a reduction on their Crash BASIC percentiles, there was negligible impact on the overall SMS effectiveness. On average, carriers that had not preventable crashes removed from the calculation of their Crash Indicator BASIC had a percentile drop of 9 points in that BASIC. The decrease in percentiles was slightly greater for smaller carriers, primarily due to the low participation by carriers in smaller safety event groups. In addition, after the removal of not preventable crashes, small carriers were less likely have a sufficient number of crashes to be evaluated in the BASIC under the data sufficiency standards used in SMS. To evaluate the impact of these changes on FMCSA’s ability to identify high risk motor carriers for safety interventions, the analysis compared the future crash rate of the group of carriers in alert status before and after the removal of the not preventable crashes from the Crash Indicator BASIC. Although the group of carriers in alert status after removal of the not preventable crashes had a slightly higher future crash rate than the group in alert status before removal of the not preventable crashes, the analysis team found a negligible impact on the ability of the Crash Indicator BASIC to identify high risk carriers. The effectiveness analysis determined that when not preventable crashes were removed, the group of carriers identified in SMS, when considering all BASICs, had a future crash rate 97% higher than the group of carriers not identified. The lack of an impact on SMS effectiveness is mainly a result of the relatively small number of carriers that participated in the demonstration program. Only 169 and 208 carriers were projected to gain and lose alerts in the Crash Indicator BASIC, respectively, which is a small fraction (2 percent) of the 8,634 carriers identified in the Crash Indicator BASIC. PO 00000 Frm 00099 Fmt 4703 Sfmt 4703 27021 Comments Alex Scott of Michigan State University indicated that the program is biased to large carriers, does not improve identification of high risk carriers, and does not provide any evidence it improves crash predictability. Justin Smoot, MCRRC, and NASTC also expressed concern that large carriers were over represented in the demonstration program. FMCSA Response FMCSA notes that participation by small carriers with fewer than 15 power units in the demonstration program was only 6 percent of the submissions. However, overall DataQs use by this same population is 45.5 percent. As a result, the Agency expects that the new program, and the removal of crashes from the SMS Crash Indicator BASIC, will result in an increased use by small carriers with eligible crashes. Because SMS segments carriers into safety event groups, SMS does not directly compare the crash records of large carriers to those of small carriers. The greater participation by large carriers in the demonstration program therefore had no impact on the percentiles of small carriers. The Agency’s effectiveness analysis discussed above concluded that removing the not preventable crashes does not impede the Agency’s ability to identify high risk carriers. This program offers all carriers and drivers the opportunity to request and obtain the removal of eligible not preventable crashes from their SMS calculations to more accurately reflect their crash history. Lastly, FMCSA has never indicated that SMS predicts crashes. FMCSA uses SMS to identify and prioritize motor carriers for safety interventions before crashes occur, using risk management techniques for high consequence, low likelihood events and considering carrier exposure across carriers of all sizes. Therefore, there was no expectation that this program would improve crash prediction. Impact of SMS Changes Although the removal of not preventable crashes from the Crash Indicator BASIC will not impact the Agency’s ability to identify high risk carriers, some carriers will see changes to their Crash Indicator BASIC percentiles. The Agency points out again that because SMS is a relative system, the removal of not preventable crashes will decrease the Crash Indicator BASIC percentiles of some E:\FR\FM\06MYN1.SGM 06MYN1 27022 Federal Register / Vol. 85, No. 88 / Wednesday, May 6, 2020 / Notices carriers and may increase the Crash Indicator BASIC percentiles of other carriers in the same safety event group. As a result, a motor carrier that does not have any additional crashes may see its Crash Indicator BASIC percentile increase because its peers submitted RDRs and the not preventable crashes were removed from the calculations. In addition, even a motor carrier that has not preventable crashes removed may see its Crash Indicator BASIC percentile increase if its peers had a greater number of not preventable crashes removed. The Crash Indicator BASIC percentiles have never been publicly available and will remain available only to motor carriers who log in to view their own data, as well as to FMCSA and law enforcement users. This program will not change any carrier’s safety fitness rating or ability to operate, nor will it establish any obligations or impose legal requirements on any motor carrier. This program also will not change how the Agency makes enforcement decisions. National Academy of Sciences’ (NAS) Correlation Study FMCSA is making these changes to SMS separately from its ongoing work in response to the June 27, 2017, NAS report, ‘‘Improving Motor Carrier Safety Measurement.’’ The NAS report noted that the crash preventability program was of interest but did not issue a recommendation directly relating to the program. Implementation Preventability Standard The standard for making a preventability determination is provided in 49 CFR part 385, Appendix B, section II.B(e): ‘‘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.’’ This continues to be the standard used by the Agency for all preventability reviews. The burden continues to be on the submitter to show by compelling evidence that the crash was not preventable. Crash Types FMCSA is implementing all crash types proposed in the August 2019 notice and adding a ‘‘Rare or unusual crash’’ type. However, to help submitters find the correct eligible crash type, FMCSA rearranged the order of VerDate Sep<11>2014 19:08 May 05, 2020 Jkt 250001 crashes to group like crash events together. As a result, the final list of eligible crash types is: Struck in the Rear type of crash when the CMV was struck: • In the rear; or • on the side at the rear. Wrong Direction or Illegal Turns type of crash when the CMV was struck: • By a motorist driving in the wrong direction; or • by another motorist in a crash when a driver was operating in the wrong direction; or • by a vehicle that was making a Uturn or illegal turn. Parked or Legally Stopped type of crash when the CMV was struck: • While legally stopped at a traffic control device (e.g., stop sign, red light or yield); or while parked, including while the vehicle was unattended. Failure of the other vehicle to Stop type of crash when the CMV was struck: • By a vehicle that did not stop or slow in traffic; or • by a vehicle that failed to stop at a traffic control device. Under the Influence type of crash when the CMV was struck: • By an individual under the influence (or related violation, such as operating while intoxicated), according to the legal standard of the jurisdiction where the crash occurred; where the individual was charged or arrested, failed a field sobriety or other test, or refused to test; or • by another motorist in a crash where an individual was under the influence (or related violation such as operating while intoxicated), according to the legal standard of the jurisdiction where the crash occurred where the individual was charged or arrested, failed a field sobriety test or other tests, or refused to test. Medical Issues, Falling Asleep or Distracted Driving type of crash when the CMV was struck: • By a driver who experienced a medical issue which contributed to the crash; or • by a driver who admitted falling asleep or admitted distracted driving (e.g., cellphone, GPS, passengers, other). Cargo/Equipment/Debris or Infrastructure Failure type of crash when the CMV: • Was struck by cargo, equipment or debris (e.g., fallen rock, fallen trees, unidentifiable items in the road); or crash was a result of an infrastructure failure. Animal Strike type of crash when the CMV: • Struck an animal Suicide type of crash when the CMV: • Struck an individual committing or attempting to commit suicide PO 00000 Frm 00100 Fmt 4703 Sfmt 4703 Rare or Unusual type of crash when the CMV: • Was involved in a crash type that seldom occurs and does not meet another eligible crash type (e.g., being struck by an airplane or skydiver or being struck by a deceased driver). DataQs With publication of this notice, DataQs is available to accept RDRs for eligible crashes occurring on or after August 1, 2019. Submitters must provide a PAR and are encouraged to provide other documents, photos, and videos to present compelling evidence that the crash is eligible and not preventable. FMCSA may 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 or with an undecided determination. Only eligible crashes submitted to FMCSA’s CPDP will be reviewed. RDRs for crash preventability reviews should not be submitted to the States or other organizations through DataQs and will be closed. As during the demonstration program, if a submitter receives a determination that the crash was preventable or undecided, or if the RDR is closed for failure to submit additional requested documents, the RDR may be re-opened once. FMCSA will reconsider the request if the submitter provides additional documentation to support the request. Agency Websites FMCSA established a new website for the CPDP at www.fmcsa.dot.gov/crashpreventability-determination-program. This website includes frequently asked questions and tools to help submitters complete the RDR process in DataQs. This website will be updated quarterly to provide information on the RDRs received and reviewed by the Agency. The website for the demonstration program will continue to be available at www.fmcsa.dot.gov/crashpreventability-demonstration-program. The Agency’s Motor Carrier Safety Planner at https://www.fmcsa.dot.gov/ safety/carrier-safety/motor-carriersafety-planner also includes information about the CPDP. James A. Mullen, Acting Administrator. [FR Doc. 2020–09679 Filed 5–5–20; 8:45 am] BILLING CODE 4910–EX–P E:\FR\FM\06MYN1.SGM 06MYN1

Agencies

[Federal Register Volume 85, Number 88 (Wednesday, May 6, 2020)]
[Notices]
[Pages 27017-27022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09679]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2014-0177]


Crash Preventability Determination Program

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice.

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SUMMARY: On July 27, 2017, FMCSA announced a demonstration program to 
evaluate the preventability of eight categories of crashes through 
submissions of Requests for Data Review to its national data correction 
system known as DataQs. On August 5, 2019, based on experiences with 
the demonstration program, FMCSA proposed a Crash Preventability 
Determination Program with a streamlined process. FMCSA proposed to 
modify the Safety Measurement System to exclude crashes with not 
preventable determinations from the prioritization algorithm and 
proposed noting the not preventable determinations in the Pre-
Employment Screening Program. This notice responds to comments received 
on the proposal and announces the start of the Agency's new Crash 
Preventability Determination Program.

FOR FURTHER INFORMATION CONTACT: Mr. Catterson Oh, Compliance Division, 
Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, 
Washington, DC 20590, (202) 366-6160, [email protected]. If you have 
questions regarding viewing or submitting material to the docket, 
contact Docket Operations, (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Background

    Since its implementation in 2010, FMCSA's Safety Measurement System 
(SMS) has used safety performance information in the Behavior Analysis 
and Safety Improvement Categories (BASICs), in addition to recordable 
crashes involving commercial motor vehicles (CMVs), to prioritize 
carriers for safety interventions (75 FR 18256). The Crash Indicator 
BASIC uses crashes from the previous 24 months to calculate percentiles 
for motor carriers. In addition, the public SMS website lists motor 
carriers' recordable crashes. Although the Crash Indicator BASIC 
percentiles have never been publicly available, stakeholders have 
expressed concern that the use of all crashes in SMS, without an 
indication of preventability, may give an inaccurate impression about 
the risk posed by the company.
    In response to this concern, FMCSA announced a demonstration 
program on July 27, 2017, to evaluate the preventability of certain 
categories of crashes (82 FR 35045). Based on its experience in 
conducting the demonstration program, and the strong support for 
continuing and expanding this program, FMCSA is initiating the Crash 
Preventability Determination Program (CPDP) as described in this 
notice. Through this program, motor carriers and drivers may submit 
eligible crashes for preventability determinations through FMCSA's 
DataQs system. FMCSA will remove crashes that were not preventable by 
the motor carrier or driver from the SMS prioritization algorithm. 
FMCSA will also note the not preventable determinations in the driver's 
Pre-Employment Screening Program (PSP) record and will note not 
preventable, preventable, and undecided determinations in the motor 
carrier's list of crashes on the public SMS website.

Implementation Proposal

General Comments

    FMCSA received 111 comments to this docket. More than 90 commenters 
supported the proposal and the Agency's plan to continue the program. 
Many noted their support of the expansion of eligible crash types. 
Gregory Cohen advised that Greyhound Lines, Inc., participated in the 
demonstration program and supports

[[Page 27018]]

the continuation of the program. Dave Guyer, Cindy Staten, Dave Fisher, 
Scott Conklin, and several anonymous commenters advised the program 
should be maintained. Associations including the Owner Operator 
Independent Drivers Association (OOIDA), the American Trucking 
Associations, the International Foodservice Distributors Association, 
National School Transportation Association, and Truckload Carriers 
Association supported the proposal.
    Thirteen commenters, including the Motor Carrier Regulatory Reform 
Coalition (MCRRC) and the National Association of Small Trucking 
Companies (NASTC), opposed the program. Both MCRRC and NASTC requested 
that the proposed changes be made through notice and comment 
rulemaking. MCRRC detailed this request by additional letters to 
FMCSA's Administrator dated June 14 and September 5, 2019, and 
requested an extension of the comment period by letter dated September 
13, 2019. FMCSA posted these letters to this docket and considered the 
June 14 letter as part of MCRRC's comments. MCRRC and NASTC expressed 
concern that preventability would be conflated with fault, and that 
this confusion may cause negative impacts to insurance rates and 
outcomes in private litigation. MCCRC and NASTC stated that the program 
would cause unfair harm to small carriers.
    The Commercial Vehicle Safety Alliance (CVSA) expressed multiple 
concerns, including issues with the new crash types, reviewers' 
qualifications, Federalism impacts, and the impact of an FMCSA not 
preventable determination on a State's criminal charges. The Insurance 
Institute of Highway Safety (IIHS) indicated the program does not 
improve safety and recommended FMCSA incentivize best practices and 
reward carriers' investments in safety.
    The other commenters either asked questions or provided comments 
that made it difficult to discern their position on the proposal.

FMCSA Response

    FMCSA declined to extend the comment period in response to MCRRC's 
September 13, 2019, request because MCRRC failed to show good cause for 
its request. FMCSA has provided ample notice and opportunities to 
comment throughout the development of this program, from the 
publication of its initial crash weighting analysis in 2015 (80 FR 
3719), through the announcement of the demonstration program in 2017 
(82 FR 35045), and the 2019 proposal to implement this program (84 FR 
38087). At each stage, FMCSA has solicited, considered, and responded 
to public comments.
    This program does not amend any prior legislative rules nor does it 
provide a basis for any new enforcement actions, and does not require a 
notice and comment rulemaking under the Administrative Procedure Act 
(49 U.S.C. 551, 553). This program does not alter FMCSA's safety 
fitness standard under 49 U.S.C. 31144 and 49 CFR part 385. As 
expressly stated on the SMS website, FMCSA uses SMS data to prioritize 
motor carriers for further monitoring, and data ``is not intended to 
imply any federal safety rating of the carrier pursuant to 49 U.S.C. 
31144.'' This program does not impact preventability determinations 
made through FMCSA safety investigations conducted under 49 CFR part 
385, nor the preventability standard contained therein.
    The crash preventability determinations made under this program 
thus 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, and the determinations do not establish any obligations 
or impose legal requirements on any motor carrier. These determinations 
also will not change how the Agency will make enforcement decisions.
    FMCSA emphasizes that these determinations do not establish legal 
liability, fault, or negligence by any party. 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 is not a proceeding to 
assign legal liability for a crash. Under 49 U.S.C. 504(f), FMCSA's 
preventability determinations may not be admitted into evidence or used 
in a civil action for damages and are not reliable for that purpose.
    In response to MCRRC's and NASTC's concerns about the potential 
conflation of preventability and fault, and CVSA's concern about the 
impact on State criminal proceedings, FMCSA added a disclaimer to the 
SMS website that states:

    A crash preventability determination does not assign fault or 
legal liability for the crash. These determinations are made on the 
basis of information available to FMCSA by persons with no personal 
knowledge of the crash and are not reliable evidence in a civil or 
criminal action. Under 49 U.S.C. 504(f), these determinations are 
not admissible in a civil action for damages. The absence of a not 
preventable determination does not indicate that a crash was 
preventable.

    In addition, FMCSA will continue to include the following text in 
its determination notifications to submitters, which it included during 
the demonstration program:

    FMCSA made this crash preventability determination on the basis 
of information available to the Agency at the time of the 
determination, and it is not appropriate for use by private parties 
in civil litigation. This determination does not establish legal 
liability, fault, or negligence by any party and was made by persons 
with no personal knowledge of the crash. This crash preventability 
determination will not affect any motor carrier's safety rating or 
ability to operate. FMCSA will not issue penalties or sanctions on 
the basis of this determination. This crash preventability 
determination does not establish any obligations or impose any legal 
requirements on any motor carrier.

    FMCSA addresses the impact of the program on small carriers in the 
``Effectiveness Analysis'' section below. In response to IIHS's 
comments, FMCSA acknowledges that the demonstration program was a first 
step in examining the impacts of preventability determinations on SMS 
with a small data set. Continuing the program and expanding crash types 
will allow FMCSA to continue to conduct analysis with more crashes.
    Regarding reviewer qualifications, FMCSA reviewed nearly 15,000 
police accident reports (PAR) during the demonstration program. 
Eligible crashes will continue to reviewed by two reviewers and 10 
percent of the crashes will also be reviewed for quality control. FMCSA 
recognizes that the law enforcement who respond to the crash have the 
most information on the event. That is why the CPDP requirements 
include submission of the PAR. Additionally, the Agency notes that the 
eligble crash types for the CPDP continue to be generally less complex 
crash events.
    In response to IIHS' suggestion to incentivize best practices, the 
Agency notes that its preventability standard at 49 CFR 385, Appendix 
B, assesses if a driver exercising normal judgment and foresight could 
have avoided the crash by taking steps within his/her control without 
causing another kind of mishap.
    The CPDP already takes into account whether the driver or vehicle 
was operating in violation of an out of service regulation at the time 
of the crash, which encourages carrier-wide best practices. The PAR 
generally does not contain sufficient information to account for best 
practices in the manufacturing of vehicles at this time.

[[Page 27019]]

Changes to Eligible Crash Types

    FMCSA proposed two changes to the original eight crash types. 
First, FMCSA would combine the crash type involving infrastructure 
failures and debris with the crash type for CMVs struck by cargo and 
equipment. The distinction between these two crash types did not result 
in different determinations and, in some cases, required submitters to 
resubmit their Requests for Data Review (RDRs) under the other crash 
type. In addition, FMCSA proposed changing the ``Motorist Under the 
Influence'' crash type to ``Individual Under the Influence'' to include 
crashes involving pedestrians, bicyclists and others.
    In the August 2019 notice, FMCSA proposed to test the eight 
additional crash types. These crashes were frequently submitted during 
the demonstration program, but did not qualify for one of the original 
crash types.

Comments

    Victor Van Kuilenburg asked that the Agency review all crashes. 
Some commenters provided additional crash types for consideration in 
the program. The National Motor Freight Traffic Association and United 
Motorcoach Association noted that the proposal made it unclear if 
unoccupied vehicles were still being included in the crash type that 
includes parked vehicles.
    CVSA expressed concern about expanding the crash types because of 
concerns about the reviewers' training and experience. Specifically, 
CVSA said that the additional crash types require higher standards of 
training and education. CVSA noted the extensive training that crash 
reconstructionists receive. CVSA also requested clarification of the 
``under the influence'' standard.
    An anonymous commenter asked if the crash type of ``When the CMV is 
struck by a driver who experiences a medical issue which causes the 
crash'' includes when the CMV driver has the medical issue.
    OOIDA recommended adding a ``Rare or Unusual Crash'' type and noted 
the recent crash between a CMV and a skydiver.

FMCSA Response

    FMCSA supports OOIDA's proposal for a ``Rare or unusual crash'' 
type and added this type to DataQs. However, the Agency expects that 
most crashes submitted to this type will not meet the standard and will 
be common, recurring crash types. When this occurs, the RDR will be 
found to be not eligible and closed upon review. The Agency does not 
support further expanding the crash types in the program at this time. 
The proposed new types are a reasonable extension of the demonstration 
program based on the volume of not eligible crashes submitted and 
reviewed, and the Agency's expected ability to determine preventability 
based on the documentation received from submitters.
    FMCSA acknowledges that the text to include unattended vehicles was 
inadvertently omitted from the August 2019 notice and the final list of 
crashes has been revised to reflect this.
    In addition, as FMCSA noted in the August 2019 notice, all not 
preventable crashes will be removed from the calculation of the Crash 
Indicator BASIC. However, the Agency will analyze the new crash types 
for 24 months but may announce changes earlier if certain crash types 
cannot be consistently reviewed. If the new crash types are able to be 
consistently reviewed, the Agency may consider expanding the program to 
include additional crash types in the future.
    Regarding reviewer qualifications, FMCSA is building on its 
experience in reviewing nearly 15,000 PARs during the demonstration 
program. Because the eligible crash types are, by design, less complex 
crash events, FMCSA does not believe these reviews require extensive 
expertise. In addition, FMCSA has built in a quality control process to 
ensure the consistency and quality of these reviews. Eligible crashes 
will continue to be reviewed by two reviewers, and 10 percent of the 
crashes will also be reviewed for quality control. FMCSA will also 
require the submission of the PAR because FMCSA recognizes that the law 
enforcement official who responds to the crash will have the most 
information on the event.
    Regarding the ``under the influence'' standard used, FMCSA is 
requiring the PAR or other document submitted to demonstrate that the 
other driver was charged with or arrested for driving under the 
influence (or a related charge such as operating while intoxicated), 
document a failed field sobriety test, document a blood alcohol level 
of .08 for non-CMV drivers or .04 for a CMV driver, or documentation of 
a refusal to test.
    To respond to the anonymous question about medical issues, the 
crash is not eligible if the submitter's driver was the person with the 
medical condition.

SMS and PSP Changes

    During the demonstration program, notations of the preventability 
determinations were made in the motor carrier's list of crashes on the 
publicly available SMS website. Crashes were not removed from the 
calculation of the Crash Indicator BASIC in SMS but the motor carrier 
was provided an alternative measure and percentile without not 
preventable crashes.
    FMCSA proposed that for eligible crashes occurring on or after 
August 1, 2019, FMCSA would continue to display the crashes with 
preventability notations in the carrier's list of crashes on the public 
SMS website, but would remove crashes with not preventable 
determinations from the SMS Crash Indicator BASIC calculation. FMCSA 
would also note the not preventable determinations in the driver's 
record in PSP.

Comments

    Numerous commenters supported both the removal of not preventable 
crashes from SMS entirely and the notation of these crashes on PSP. 
Lori Fisher, Jeff Loggins, Larry Nestor, and Stacey Johnson and OOIDA 
all supported removing the not preventable crashes from the SMS 
calculation.
    MCRRC and NASTC opposed this change, noting that all other crashes 
will be ``presumed preventable.''

FMCSA Response

    FMCSA is implementing the associated changes to these information 
systems. The SMS public display is being revised to list not 
preventable crashes occurring on or after August 1, 2019, separately 
from other crashes to make it clear they are not included in the Crash 
Indicator BASIC. The carrier's list of crashes and the notations 
associated with not preventable crashes will remain publicly available. 
Crashes deemed not preventable will not be used to prioritize motor 
carriers for safety interventions. FMCSA will continue to display one 
of three determinations for the eligible crashes that it reviews:
    1. Reviewed--Not Preventable--``FMCSA reviewed this crash and 
determined that it was not preventable.''
    2. Reviewed --Preventable--``FMCSA reviewed this crash and 
determined that it was preventable.''
    3. Reviewed --Undecided--``FMCSA reviewed this crash and could not 
make a preventability determination based on the evidence provided.''
    Crashes with ``Reviewed--Preventable'' and ``Reviewed--Undecided'' 
will continue to be included in the Crash Indicator BASIC. The absence 
of a not preventable determination does not indicate that a crash was 
preventable. The Crash Indicator BASIC percentiles will remain

[[Page 27020]]

available only to motor carriers who log in to view their own data, as 
well as to FMCSA and law enforcement users.
    Determination notations for crashes reviewed in the previous 
demonstration program will remain in SMS for 2 years from the date of 
the crash. The Agency previously announced that crashes reviewed during 
the demonstration program would not be removed from the Crash Indicator 
BASIC, and some carriers may have decided not to participate on that 
basis. Therefore, crashes reviewed during the demonstration program 
will not be removed from calculation of the SMS Crash Indicator BASIC 
but motor carriers will still have access to the alternative measures 
and percentiles.
    Crashes remain in SMS for 2 years from the date of the crash and 
remain in PSP for 5 years from the date of the crash. As a result, 
FMCSA will not review crashes that are more than 5 years old.

End of Demonstration Program and Start of New Program

    The demonstration program accepted crashes in the eight original 
eligible crash types that occurred from June 1, 2017, through July 31, 
2019. RDRs for these crashes were accepted through September 30, 2019.

Comments

    There were no comments specifically about the end of the 
demonstration program or start date for the CPDP. With the publication 
of this notice, FMCSA's DataQs sytem is available to accept RDRs for 
the expanded list of eligible crashes occurring on or after August 1, 
2019.

Public Input Changes

    FMCSA proposed to cease the 30-day public input period and cease 
the practice of publishing preliminary not preventable determinations. 
This change allows RDRs to be closed with not preventable 
determinations without the 30-day delay and will reduce resources to 
take additional action on the RDR. In addition, FMCSA proposed to stop 
publishing a list of not preventable determinations on the Agency's 
website. The Agency will continue to publish quarterly statistics, as 
was done during the demonstration program.

Comments

    Angela Petry, Doug Anonymous, and Greyhound Lines commented that 
the 30-day public input period should be eliminated. No commenters 
opposed this change.

FMCSA Response

    FMCSA will discontinue the 30-day public input period in the CPDP. 
However, as reflected in the August 2019 notice, the Agency will 
continue to accept information about any crash by email to 
[email protected]. Any information received will be fully 
considered and could result in a change in the determination.

Document Requirement

    FMCSA proposed requiring submitters to provide the complete PAR to 
participate in the program.

Comments

    MCRRC objected to the Agency's reliance on PARs in the CPDP because 
PARs are hearsay that are entitled to little or no weight in a fault or 
legal liability determination. Alex Scott of Michigan State University 
stated that the program contradicts FMCSA's previous position on the 
sufficiency and reliability of the information in PARs.

FMCSA Response

    The demonstration program did not require any specific documents be 
submitted with the RDR so that the Agency could determine which 
documents were the strongest for future use. Based on the more than 
14,000 RDRs reviewed, FMCSA determined that the PAR is the best single 
source of crash information. FMCSA's experience thoughout the 
demonstration program was that the majority of PARs submitted contained 
sufficient detail to complete a preventability review. As noted above, 
preventability determinations do not assign fault or legal liability 
for a crash. In addition, FMCSA notes that previous studies of PAR 
accuracy were based on fatal crashes and were not limited to the 
generally less complex crash types in the demonstration program. The 
reviewers will continue to rely on PARs and other documents submitted 
to conduct the review.
    Therefore, when submitting RDRs to the CPDP, the submitter must 
provide the PAR and is encouraged to submit other documentation 
providing compelling evidence that the crash is eligible and was not 
preventable. The DataQs system continues to accept documents, photos, 
and videos that do not exceed 5 MB in formats including MP4, MPG, MKV, 
AVI, MPEG, and WMV file types.
    If only the PAR is submitted and it contains conflicting 
information about the crash (e.g., the narrative is different than the 
diagram or point of impact information), the crash may found to be not 
eligible or the determination may be undecided.

Process Information

    FMCSA proposed to develop the functionality in DataQs to allow 
FMCSA to change the crash type on behalf of the submitter to another 
eligible crash type, when appropriate. The Agency also proposed 
streamlining the review process and using only one stage of contract 
reviewers to provide a recommendation. In addition, FMCSA proposed 
allowing the contract reviewers to close RDRs for crashes that are not 
one of the eligible crash types.
    FMCSA proposed to rely on the Motor Carrier Management Information 
System (MCMIS) crash report to confirm the driver's license and medical 
certification status as part of implementation.
    FMCSA proposed to continue reviewing post-crash inspection reports 
and if the inspection shows that the CMV or driver was in violation of 
an out of service (OOS) regulation under the North American Standard 
OOS Criteria prior to the crash or that the driver was not properly 
licensed, the crash will be deemed preventable. In addition, FMCSA 
proposed to continue to request post-crash drug and alcohol test 
results when the crash results in a fatality.

Comments

    Several commenters noted that it took longer than expected for RDRs 
to be reviewed in the demonstration program and supported changes to 
improve the process.

FMCSA Response

    As a result, FMCSA is implementing these process improvements. 
However, FMCSA is making one clarification regarding the use of MCMIS 
to confirm proper licensing on the date of the crash. If this 
information is missing from the MCMIS report or MCMIS indicates the 
wrong license class for the vehicle being operated, the Commercial 
Driver's License Information System report will be used to verify the 
driver's license. If the driver has renewed his/her license and/or 
medical certificate since the date of the crash, evidence of licensing 
and/or medical certification on the date of the crash will be requested 
from the submitter. Failure to provide this information will continue 
to preclude a not preventable determination and will result in an 
undecided determination. If documentation shows that the driver was not 
qualified, the crash will be deemed preventable.
    If drug and alcohol testing results, or the required explanation of 
why the tests were not completed, are not submitted, this will also 
preclude a not

[[Page 27021]]

preventable determination and will result in an undecided 
determination. If the drug and/or alcohol test results were positive, 
the crash will be deemed preventable.
    FMCSA will continue to make preventable determinations if there is 
evidence that the driver and/or carrier was legally prohibited from 
operating the CMV at the time of the crash. Specfically, if a post-
crash inspection identifies a driver or vehicle violation of an OOS 
regulation and the violation existed before the crash and was not 
attributed to the crash, or if the MCMIS crash report or other 
documents reviewed as part of the determination indicate that the 
driver was not qualified to drive on the date of the crash, the crash 
is not eligible for a not preventable determination because the driver 
and/or carrier were legally prohibited from operating the CMV at the 
time of the crash.
    Also, to improve program efficiencies and facilitate postings with 
SMS, the updated DataQs system will not allow a submitter to complete 
the process if there is not a MCMIS crash report submitted by the 
State. However, the submitter may enter the required information and 
save the RDR in DataQs and then submit once the crash is in MCMIS. A 
State's delay in submitting the crash to FMCSA does not delay the 
removal of a not preventable crash from SMS because SMS uses only 
crashes that are in MCMIS.

Effectiveness Analysis

    During the demonstration program, 4,089 unique motor carriers 
submitted more than 14,700 RDRs. FMCSA conducted an analysis of the 2-
year demonstration program and a copy is in the docket. For purposes of 
the updated analysis, FMCSA looked at the data for the 2,124 
participating carriers that had at least one crash determined to be not 
preventable. The report includes three primary analyses: (1) Summary of 
safety profiles of carriers that participate in the program; (2) impact 
on carriers' Crash Indicator BASIC percentiles; and (2) impact on SMS 
effectiveness.
    The first analysis found that participating carriers are more 
likely to be large combination carriers (greater than 51 Power Units 
(PU)), have more inspections per PU, and have a crash risk that does 
not differ from non-participants. The second analysis found that, on 
average, carriers with not preventable crashes removed have a 
percentile drop of 9 points in the recalculated Crash Indicator BASIC. 
Only a small number of carriers change alert status in the Crash 
Indicator BASIC--out of both participating and non-participating 
carriers, 134 carriers gain alert status and 136 carriers lose alert 
status as a result of excluding not preventable crashes from the Crash 
Indicator BASIC. The third analysis found that removing not preventable 
crashes from the Crash Indicator BASIC should not have an impact on the 
effectiveness of FMCSA's prioritization programs (SMS, High-Risk). This 
is due to the relatively low number (about 2%) of crashes determined to 
be not preventable and removed from the calculation.
    In conclusion, the evaluation of the effectiveness of the 
demonstration program found that while carriers who have had not 
preventable crashes removed via the demonstration program saw a 
reduction on their Crash BASIC percentiles, there was negligible impact 
on the overall SMS effectiveness.
    On average, carriers that had not preventable crashes removed from 
the calculation of their Crash Indicator BASIC had a percentile drop of 
9 points in that BASIC. The decrease in percentiles was slightly 
greater for smaller carriers, primarily due to the low participation by 
carriers in smaller safety event groups. In addition, after the removal 
of not preventable crashes, small carriers were less likely have a 
sufficient number of crashes to be evaluated in the BASIC under the 
data sufficiency standards used in SMS.
    To evaluate the impact of these changes on FMCSA's ability to 
identify high risk motor carriers for safety interventions, the 
analysis compared the future crash rate of the group of carriers in 
alert status before and after the removal of the not preventable 
crashes from the Crash Indicator BASIC. Although the group of carriers 
in alert status after removal of the not preventable crashes had a 
slightly higher future crash rate than the group in alert status before 
removal of the not preventable crashes, the analysis team found a 
negligible impact on the ability of the Crash Indicator BASIC to 
identify high risk carriers. The effectiveness analysis determined that 
when not preventable crashes were removed, the group of carriers 
identified in SMS, when considering all BASICs, had a future crash rate 
97% higher than the group of carriers not identified.
    The lack of an impact on SMS effectiveness is mainly a result of 
the relatively small number of carriers that participated in the 
demonstration program. Only 169 and 208 carriers were projected to gain 
and lose alerts in the Crash Indicator BASIC, respectively, which is a 
small fraction (2 percent) of the 8,634 carriers identified in the 
Crash Indicator BASIC.

Comments

    Alex Scott of Michigan State University indicated that the program 
is biased to large carriers, does not improve identification of high 
risk carriers, and does not provide any evidence it improves crash 
predictability.
    Justin Smoot, MCRRC, and NASTC also expressed concern that large 
carriers were over represented in the demonstration program.

FMCSA Response

    FMCSA notes that participation by small carriers with fewer than 15 
power units in the demonstration program was only 6 percent of the 
submissions. However, overall DataQs use by this same population is 
45.5 percent. As a result, the Agency expects that the new program, and 
the removal of crashes from the SMS Crash Indicator BASIC, will result 
in an increased use by small carriers with eligible crashes.
    Because SMS segments carriers into safety event groups, SMS does 
not directly compare the crash records of large carriers to those of 
small carriers. The greater participation by large carriers in the 
demonstration program therefore had no impact on the percentiles of 
small carriers.
    The Agency's effectiveness analysis discussed above concluded that 
removing the not preventable crashes does not impede the Agency's 
ability to identify high risk carriers. This program offers all 
carriers and drivers the opportunity to request and obtain the removal 
of eligible not preventable crashes from their SMS calculations to more 
accurately reflect their crash history.
    Lastly, FMCSA has never indicated that SMS predicts crashes. FMCSA 
uses SMS to identify and prioritize motor carriers for safety 
interventions before crashes occur, using risk management techniques 
for high consequence, low likelihood events and considering carrier 
exposure across carriers of all sizes. Therefore, there was no 
expectation that this program would improve crash prediction.

Impact of SMS Changes

    Although the removal of not preventable crashes from the Crash 
Indicator BASIC will not impact the Agency's ability to identify high 
risk carriers, some carriers will see changes to their Crash Indicator 
BASIC percentiles. The Agency points out again that because SMS is a 
relative system, the removal of not preventable crashes will decrease 
the Crash Indicator BASIC percentiles of some

[[Page 27022]]

carriers and may increase the Crash Indicator BASIC percentiles of 
other carriers in the same safety event group. As a result, a motor 
carrier that does not have any additional crashes may see its Crash 
Indicator BASIC percentile increase because its peers submitted RDRs 
and the not preventable crashes were removed from the calculations. In 
addition, even a motor carrier that has not preventable crashes removed 
may see its Crash Indicator BASIC percentile increase if its peers had 
a greater number of not preventable crashes removed.
    The Crash Indicator BASIC percentiles have never been publicly 
available and will remain available only to motor carriers who log in 
to view their own data, as well as to FMCSA and law enforcement users. 
This program will not change any carrier's safety fitness rating or 
ability to operate, nor will it establish any obligations or impose 
legal requirements on any motor carrier. This program also will not 
change how the Agency makes enforcement decisions.

National Academy of Sciences' (NAS) Correlation Study

    FMCSA is making these changes to SMS separately from its ongoing 
work in response to the June 27, 2017, NAS report, ``Improving Motor 
Carrier Safety Measurement.'' The NAS report noted that the crash 
preventability program was of interest but did not issue a 
recommendation directly relating to the program.

Implementation

Preventability Standard

    The standard for making a preventability determination is provided 
in 49 CFR part 385, Appendix B, section II.B(e): ``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.'' This continues 
to be the standard used by the Agency for all preventability reviews. 
The burden continues to be on the submitter to show by compelling 
evidence that the crash was not preventable.

Crash Types

    FMCSA is implementing all crash types proposed in the August 2019 
notice and adding a ``Rare or unusual crash'' type. However, to help 
submitters find the correct eligible crash type, FMCSA rearranged the 
order of crashes to group like crash events together. As a result, the 
final list of eligible crash types is:
    Struck in the Rear type of crash when the CMV was struck:
     In the rear; or
     on the side at the rear.
    Wrong Direction or Illegal Turns type of crash when the CMV was 
struck:
     By a motorist driving in the wrong direction; or
     by another motorist in a crash when a driver was operating 
in the wrong direction; or
     by a vehicle that was making a U-turn or illegal turn.
    Parked or Legally Stopped type of crash when the CMV was struck:
     While legally stopped at a traffic control device (e.g., 
stop sign, red light or yield); or while parked, including while the 
vehicle was unattended.
    Failure of the other vehicle to Stop type of crash when the CMV was 
struck:
     By a vehicle that did not stop or slow in traffic; or
     by a vehicle that failed to stop at a traffic control 
device.
    Under the Influence type of crash when the CMV was struck:
     By an individual under the influence (or related 
violation, such as operating while intoxicated), according to the legal 
standard of the jurisdiction where the crash occurred; where the 
individual was charged or arrested, failed a field sobriety or other 
test, or refused to test; or
     by another motorist in a crash where an individual was 
under the influence (or related violation such as operating while 
intoxicated), according to the legal standard of the jurisdiction where 
the crash occurred where the individual was charged or arrested, failed 
a field sobriety test or other tests, or refused to test.
    Medical Issues, Falling Asleep or Distracted Driving type of crash 
when the CMV was struck:
     By a driver who experienced a medical issue which 
contributed to the crash; or
     by a driver who admitted falling asleep or admitted 
distracted driving (e.g., cellphone, GPS, passengers, other).
    Cargo/Equipment/Debris or Infrastructure Failure type of crash when 
the CMV:
     Was struck by cargo, equipment or debris (e.g., fallen 
rock, fallen trees, unidentifiable items in the road); or crash was a 
result of an infrastructure failure.
    Animal Strike type of crash when the CMV:
     Struck an animal
    Suicide type of crash when the CMV:
     Struck an individual committing or attempting to commit 
suicide
    Rare or Unusual type of crash when the CMV:
     Was involved in a crash type that seldom occurs and does 
not meet another eligible crash type (e.g., being struck by an airplane 
or skydiver or being struck by a deceased driver).

DataQs

    With publication of this notice, DataQs is available to accept RDRs 
for eligible crashes occurring on or after August 1, 2019. Submitters 
must provide a PAR and are encouraged to provide other documents, 
photos, and videos to present compelling evidence that the crash is 
eligible and not preventable. FMCSA may 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 or with an undecided 
determination.
    Only eligible crashes submitted to FMCSA's CPDP will be reviewed. 
RDRs for crash preventability reviews should not be submitted to the 
States or other organizations through DataQs and will be closed.
    As during the demonstration program, if a submitter receives a 
determination that the crash was preventable or undecided, or if the 
RDR is closed for failure to submit additional requested documents, the 
RDR may be re-opened once. FMCSA will reconsider the request if the 
submitter provides additional documentation to support the request.

Agency Websites

    FMCSA established a new website for the CPDP at www.fmcsa.dot.gov/crash-preventability-determination-program. This website includes 
frequently asked questions and tools to help submitters complete the 
RDR process in DataQs. This website will be updated quarterly to 
provide information on the RDRs received and reviewed by the Agency.
    The website for the demonstration program will continue to be 
available at www.fmcsa.dot.gov/crash-preventability-demonstration-program.
    The Agency's Motor Carrier Safety Planner at https://www.fmcsa.dot.gov/safety/carrier-safety/motor-carrier-safety-planner 
also includes information about the CPDP.

James A. Mullen,
Acting Administrator.
[FR Doc. 2020-09679 Filed 5-5-20; 8:45 am]
 BILLING CODE 4910-EX-P