Crash Preventability Determination Program, 96269-96274 [2024-28377]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 89, Number 233 (Wednesday, December 4, 2024)]
[Notices]
[Pages 96269-96274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28377]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2022-0233]


Crash Preventability Determination Program

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), U.S. 
Department of Transportation (DOT).

ACTION: Notice; response to public comments.

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SUMMARY: FMCSA announces changes to its Crash Preventability 
Determination Program (CPDP). Under the CPDP carriers and drivers may 
submit requests for data review (RDR) to FMCSA to determine the 
preventability of commercial motor vehicle (CMV) crashes. FMCSA 
proposed these changes in its Federal Register notice, ``Crash 
Preventability Determination Program,'' published at https://www.regulations.gov/docket/FMCSA-2022-0233 on April 13, 2023. This 
notice finalizes the proposed changes, responds to comments received, 
and outlines next steps for implementation.

FOR FURTHER INFORMATION CONTACT: Mr. Catterson Oh, Compliance Division, 
Office of Enforcement and Compliance, FMCSA, 1200 New Jersey Avenue SE, 
Washington, DC 20590-0001, (202) 366-6160, [email protected].
    If you have questions regarding viewing or submitting material to 
the docket, contact Dockets Operations, (202) 366-9826.

SUPPLEMENTARY INFORMATION: FMCSA organizes this notice as follows:

I. Background
II. Summary of Public Comments and Response
III. List of Eligible Crash Types
    A. Changes to Existing Crash Types
    B. New Crash Types
IV. Reminders on CPDP Process and System Impacts
    A. Process
    B. Document Requirements
    C. Impacts to Safety Measurement System (SMS) and Pre-Employment 
Screening Program (PSP)
    D. Implementation of Crash Type Updates to CPDP
V. Other Comments on Changes Not Proposed
VI. Next Steps

I. Background

    FMCSA currently accepts RDRs in its DataQs system to evaluate the 
preventability of 16 specific crash types as set forth in a notice 
published in the Federal Register on May 6, 2020 (85 FR 27017). On 
April 13, 2023, FMCSA proposed changes to existing and new crash types 
in CPDP and announced a 60-day preview and comment period for 
stakeholders (88 FR 22518). The comment period ended on June 12, 2023.

II. Summary of Public Comments and Response

    FMCSA received 60 unique comments in response to the April 2023, 
notice; one comment was received outside the notice comment period. Of 
these, 53 submissions contained comments specifically on the changes 
proposed in that notice. The commenters included motor carriers, 
drivers/owner-operators, industry associations, and safety consultants. 
The following entities submitted relevant comments: AIST Safety 
Consultants, American Trucking Associations (ATA), Big M, Cessna 
Transport, David W. Blankenship LLC, Fuel Delivery Services Inc., Heyl 
Truck Lines, Independent Carrier Safety Association, J.B. Hunt 
Transport, Inc., Knight-Swift Transportation, Lytx, National Motor 
Freight Traffic Association, Inc. (NFMTA), National Tank Truck Carriers 
(NTTC), National Waste and Recycling Association, Owner-Operator 
Independent Drivers Association (OOIDA), Ray Walker Trucking, Sanborn, 
Brandon, Duvall & Bobbitt Cp., L.P.A., Siskiyou Transportation, Inc., 
The Forward Group, Inc., TMC Transportation, Trailiner Corp, Veolia 
North America, Werner Enterprisers, Inc., a consortium of associations 
Air & Expedited Motor Carriers Association, Airforwarders Association, 
Alliance for Safe, Efficient and Competitive Truck Transportation, Auto 
Haulers Association of America, American Home Furnishings Alliance, 
Apex Capital Corp, National Association of Small Trucking Companies, 
Sompo International, Specialized Furniture Carriers, The Expedite 
Association of North American, Transportation & Logistics Council, 
Transportation Loss Prevention and Security Association, and 
individuals who did not identify their organizations. Many stakeholders 
provided comments on multiple proposed changes and topics. Comments 
outside the scope of the April 2023 notice are not discussed in this 
notice.
    Comments in response to the April 2023, notice largely supported 
the proposed changes. The relevant topics generating the most responses 
were: (1) proposal for new crash types, particularly the inclusion of 
requests that have video evidence of the crash; (2) changing the 
eligibility standard for wrong direction crashes; and (3) the 
turnaround time for a preventability determination on an eligible 
crash. In addition, many commenters suggested additional crash types to 
include as eligible for the program. Two commenters (Josh Curry and 
Charles E. Guitard) stated their opposition to expanding the program. 
Josh Curry noted that the ``cost to benefits ratio can't justify it,'' 
and Charles E. Guitard would like the Agency to address existing 
issues, such as the lack of truck parking. The following sections 
provide a summary of the comments received and the Agency's responses.

III. List of Eligible Crash Types

A. Changes to Existing Crash Types

    While many commenters favored expanding the eligibility of the 
program, few specifically addressed the changes to existing crash types 
that would allow more crashes to be eligible. Five commenters (Werner, 
NFMTA, NTTC, Steve Davis, Siskiyou Transportation, Inc., and OOIDA) 
specifically expressed support for the proposed modifications.
    AIST Safety Consulting supported FMCSA's proposal to remove the 
phrase ``The Commercial Motor Vehicle (CMV) was struck because'' to 
address unfair disqualification of CMVs that were the striking vehicle 
but could not have avoided the collision.'' They also supported the 
acceptance of multi-vehicle crashes as eligible under the existing 
crash types.
    The Independent Carrier Safety Association and ATA supported the 
change to the crash type originally worded ``When the CMV was struck by 
a driver who admitted to falling asleep or admitted to distracted 
driving'' to remove the admission requirement.
    Barry Poole of Griffith, Indiana, recommended that FMCSA, ``Please 
strike the term committing or attempting to commit suicide and replace 
with died by or attempting to die by.''
FMCSA Response
    FMCSA will modify the list of existing crash types as proposed in 
the April 13, 2023, notice. These changes will encompass more 
scenarios, such as where the CMV was not the striking vehicle and 
multi-vehicle crashes.

[[Page 96270]]

B. New Crash Types

    Many commenters welcomed the addition of new eligible crash types 
to the program. The notice proposed adding the following types:
    1. CMV was struck on the side by a motorist operating in the same 
direction.
    2. CMV was struck because another motorist was entering the roadway 
from a private driveway or parking lot.
    3. CMV was struck because another motorist lost control of their 
vehicle. The Police Accident Report (PAR) must specifically mention 
loss of control either in the citation, contributing factors, and/or 
PAR narrative.
    4. Any other type of crash involving a CMV where a video 
demonstrates the sequence of events of the crash.
    Twenty-six commenters supported the inclusion of the four new crash 
types. The crash type ``Any other crash involving a CMV where a video 
demonstrates the sequence of events of the crash,'' generated the most 
comments, with fourteen commenters (The Forward Group, Inc., Jeff 
Loggins, Trailiner Corp, AIST Safety Consultants, J.B. Hunt, NWRA, 
NTTC, Independent Carrier Safety Association, ATA, Werner Enterprises, 
Inc., David Search, and three anonymous posters) specifically 
addressing this change.
    Three commenters (Jeff Loggins, Trailiner Corp, and an anonymous 
commenter) offered remarks on the challenges of uploading videos to the 
DataQs system. These commenters requested that the DataQs system be 
updated to allow upload of more file types and larger file sizes.
    ATA, J.B. Hunt Transport, Inc., and an anonymous commenter 
expressed concerns with the Agency's handling of video files. ATA's 
comments noted ``ATA urges FMCSA to further clarify that any video 
evidence should be reviewed, not just an onboard video recorder (i.e., 
surveillance footage, cell phone video, etc.). Furthermore, FMCSA 
should clarify the expectation for demonstrating the sequence of events 
of the crash . . . FMCSA should not expect, nor require, video evidence 
in the hours and days leading up to the crash. Additionally, FMCSA 
should take steps to ensure data privacy when submitting video evidence 
and ensure that any video submissions are permanently deleted after a 
determination has been made.'' J.B. Hunt Transport, Inc., believes that 
video submissions should be treated as confidential business 
information and exempt from public disclosure. An anonymous commenter 
inquired about the policies surrounding video submissions, stating 
``What will be done with the videos that are submitted? . . . Just 
think it should also be disclosed if we will be submitting our private 
footage.''
    In addition to the four proposed crash types, many commenters also 
requested the program expand to include other crash types. The crash 
types suggested by commenters are listed below.

1. Crashes at non-controlled intersections, when video evidence is 
provided
2. Crashes where the other vehicle tries to outrun the truck
3. Crashes with an abandoned vehicle left in the roadway
4. Crashes where the other vehicle makes an improper lane change or a 
sideswipe crash
5. Crashes where the other driver is not legally licensed to drive
6. Weather related crashes (2 comments)
7. Crashes where the other driver took unsafe actions (2 comments)
8. Crashes where the other vehicle is operated at excessive speed
9. Crashes where the other vehicle has an extreme lane incursion
10. Crashes where the other motorist causes the crash
11. Crashes where other vehicle pulls out of parking lot
12. Crashes where other vehicle ``Failed to Maintain Lane''
13. Crashes where other vehicle fails to ``yield right of way''
14. Crashes instigated by a road rage incident
15. Crashes if the Crash avoidance systems were not recording or 
detecting any harsh or hard handling prior to the crash or improper 
handling of the CMV prior to or at the time of the crash
FMCSA Response
    FMCSA reviewed the list of proposed crash types and found that many 
were already incorporated in the new and modified crash types proposed 
in the April 2023, notice. FMCSA does not plan to include additional 
crash types beyond those proposed in the April 13, 2023, notice at this 
time. The eligible crash types listed are less complex crash events 
that do not require extensive expertise to review. Crash scenarios not 
specifically listed as eligible may be accepted to the program if a 
video showing the sequence of the crash is submitted with the request.
    Regarding suggestions to increase file size and type limitations in 
DataQs to accommodate video file submissions, FMCSA notes that in 
September 2023, the file size limitation in DataQs was increased to 25 
MB, and the system accepts most commonly used file formats. In response 
to comments by ATA, J.B. Hunt and an anonymous commenter on video 
privacy and security, FMCSA notes that all files uploaded to DataQs are 
encrypted. Information submitted to the CPDP is not used for 
enforcement purposes. FMCSA also notes that documents uploaded to RDRs 
continue to be accessible in DataQs after a determination is made, and 
the RDR may be reopened if additional information is provided to the 
Agency. Federal records management regulations require the Agency to 
keep files submitted to the DataQs system for a mandated timeframe.
    The video footage submitted with the CPDP request is expected to 
include the full sequence of the crash, but submitters should not 
include video files of hours or days preceding the crash. As a result, 
the final list of eligible crash types is as follows:

1. CMV was struck in the rear by a motorist
2. CMV was struck on the side at the rear by a motorist
3. CMV was struck while legally stopped at a traffic control device or 
parked, including while the vehicle was unattended
4. CMV was struck because another motorist was driving in the wrong 
direction
5. CMV was struck because another motorist was making a U-turn or 
illegal turn
6. CMV was struck because another motorist did not stop or slow in 
traffic
7. CMV was struck because another motorist failed to stop at a traffic 
control device
8. CMV was struck because another 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
9. CMV was struck because another motorist experienced a medical issue 
which contributed to the crash
10. CMV was struck because another motorist fell asleep
11. CMV was struck because another motorist was distracted (e.g., 
cellphone, GPS, passengers, other)
12. CMV was struck by cargo or equipment from another vehicle, or 
debris (e.g., fallen rock, fallen trees, unidentifiable items in the 
road)
13. CMV crash was a result of an infrastructure failure
14. CMV struck an animal
15. CMV crash involving a suicide death or suicide attempt

[[Page 96271]]

16. CMV was struck on the side by a motorist operating in the same 
direction as CMV
17. CMV was struck because another motorist was entering the roadway 
from a private driveway or parking lot
18. CMV was struck because another motorist lost control of the vehicle
19. CMV was involved in a crash with a non-motorist
20. 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, 
skydiver, or a deceased driver in another vehicle)
21. Any other type of crash, not listed above, where a CMV was involved 
and a video demonstrates the sequence of events of the crash

IV. Reminders on CPDP Process and System Impacts

A. Process

    Two commenters (OOIDA and Bryan Henry) want FMCSA to proactively 
review crashes for preventability and remove the requirement for the 
motor carrier or driver to submit a request. OOIDA stated that ``Given 
the CPDP data over the last five years, the burden should now fall on 
the agency, rather than the submitter, to overturn qualifying crashes . 
. . We believe transferring the burden to the agency to determine crash 
preventability will help keep safe, experienced motor carriers in 
business and will also reduce the current backlog of CPDP 
submissions.''
    Additionally, two other commenters (Sanborn, Brandon, Duvall & 
Bobbitt Co., L.P.A. and Henry Seaton) believe that the CPDP lacks due 
process. Sanborn, Brandon, Duvall & Bobbitt Co., L.P.A. commented ``We 
advocate for the CPDP to restore procedural and substantive due process 
to the CPDP by providing a hearing, a right to appeal, the right to 
subpoena evidence and witnesses, and by withholding the CSA score 
effects of crashes until the due process results in a finding the crash 
was preventable.''
    Eleven commenters (Jeff Wood, Stephen Hobbs, AIST Safety 
Consulting, Knight-Swift Transportation, Ray Walker Trucking, TMC 
Transportation, Sanborn, Brandon, Duvall & Bobbitt Co., L.P.A., J.B. 
Hunt Transport, Inc., National Tank Truck Carriers, ATA, and OOIDA) 
addressed the review time associated with receiving a determination 
from the CPDP. All eleven comments on this topic noted that the review 
time is too long. J.B. Hunt Transport, Inc., asked FMCSA to ensure 
adequate staffing for the expanded program.
    The April 2023 notice maintained that for crashes resulting in a 
fatality, proper DOT post-accident drug and alcohol testing results or 
the required explanation of why the tests were not completed or not 
completed within the timeframes specified in Sec.  382.303(d)(1) and 
(d)(2), must be submitted. Knight-Swift Transportation commented on 
this requirement and would like more consideration for circumstances 
where privacy laws prevent the motor carrier from getting an update on 
the severity of injuries from the crash. They request that an 
``Undecided'' determination be rendered only if the carrier does not 
provide a reason for not performing the test.
FMCSA Response
    The CPDP process will remain initiated by a request from the motor 
carrier, driver, or authorized representatives. The burden is on the 
submitter to provide compelling evidence that the crash is eligible and 
not preventable. Submitters are encouraged to submit other documents to 
support their request including videos, pictures, and court documents. 
The crash data fields that are submitted to FMCSA in the Motor Carrier 
Management Information System (MCMIS) are a subset of the information 
that is available on the PAR. FMCSA does not have direct access to PARs 
or other supporting documentation about a crash; and a preventability 
determination requires more information than is available in MCMIS.
    Regarding the due process comments, the CPDP is a voluntary program 
that supports the SMS. FMCSA does not believe that using recorded 
crashes for safety assessment and enforcement workload prioritization 
purposes constitutes deprivation of a property interest for which due 
process is required. This program does not amend any prior legislative 
rules, nor does it provide a basis for any new enforcement actions. And 
it 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. 
Preventability will be determined according to the following standard: 
``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.''
    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 (85 
FR 27017, 27018).
    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. 
Additionally, submitters have an option to create a new RDR if 
additional documents or evidence is provided. FMCSA will reconsider the 
request if the submitter provides additional documentation to support 
the request.
    Regarding Knight-Swift Transportation's request for leniency on the 
program requirement for proper DOT post-accident drug and alcohol 
testing results or the required explanation of why the tests were not 
completed or not completed within the timeframes specified in Sec.  
382.303(d)(1) and (d)(2), the Agency will not change this requirement 
for fatal crashes. This program requirement aligns with carriers' 
responsibilities for post-accident drug and alcohol testing outlined in 
the Federal Motor Carrier Safety Regulations.
    FMCSA continues to provide clarification and individual reminders 
to submitters participating in the program, as questions have arisen. 
To assist the public in better understanding the CPDP process and 
system impacts,

[[Page 96272]]

FMCSA is providing the following reminders.

Preventability Standard

    The Agency emphasizes that these changes to the CPDP do not affect 
the legal standard for or procedures governing FMCSA's safety fitness 
determinations under 49 U.S.C. 31144 and 49 CFR part 385, subpart A. 
The Agency's standard for making a preventability determination for 
purposes of assigning a safety fitness rating remains unchanged and is 
set forth in 49 CFR part 385, Appendix B, section II.B(e). The burden 
for a CPDP not preventable determination continues to be on the 
submitter to show by compelling evidence that the crash was not 
preventable. FMCSA will continue to display the current disclaimer on 
the SMS website and will continue to include language in its 
determination notifications to submitters explaining that a crash 
preventability determination does not assign fault or legal liability 
for the crash.

Process

    FMCSA will continue to make a determination of ``Preventable'' if 
there is evidence that the driver or carrier could have prevented the 
crash or was prohibited from operating the CMV at the time of the 
crash. This includes, but is not limited to, out-of-service violations, 
license violations, and driver prohibitions in the Agency's Drug and 
Alcohol Clearinghouse.
    FMCSA will continue to rely on the MCMIS crash report to confirm 
that the driver was properly licensed at the time 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 (CDLIS) report will be used to 
verify the driver's license. Additionally, the CDLIS report is used to 
confirm the driver was not operating with an open license withdrawal or 
while suspended due to a drug or alcohol violation. The crash will be 
deemed ``Preventable'' if documentation shows that the driver was not 
qualified at the time of the crash.
    If CDLIS is used to verify the license and the driver has renewed 
the license or medical certificate since the date of the crash, 
evidence of licensing or medical certification on the date of the crash 
will continue to be requested from the submitter. Failure to provide 
any requested information within 14 calendar days will continue to 
preclude a ``Not Preventable'' determination and result in an 
``Undecided'' determination.
    As a reminder, for crashes resulting in a fatality, proper DOT 
post-accident drug and alcohol testing results, or the required 
explanation of why the tests were not conducted or not completed within 
the timeframes specified in Sec.  382.303(d)(1) and (d)(2), must be 
submitted. The tests must be conducted in accordance with the 
requirements of 49 CFR part 40, which requires the use of a urine 
specimen for drug testing and either breath or saliva testing for 
alcohol. An exception for post-accident alcohol testing conducted under 
the authority of Federal, State, or local officials permits the use of 
a blood test. Additionally, post-accident drug testing under the 
authority of Federal, State, or local officials requires the use of a 
urine specimen for drug testing. The crash will be deemed 
``Preventable'' if the drug or alcohol test results are positive or the 
driver refuses to submit to a test. More information about proper drug 
and alcohol testing procedures can be found at https://www.fmcsa.dot.gov/regulations/drug-alcohol-testing-program.
    Failure to provide requested documents within 14 calendar days may 
preclude a ``Not Preventable'' determination and may result in an 
``Undecided'' determination.

B. Document Requirements

    Three commenters (Siskiyou Transportation, Inc., ATA, and Werner 
Enterprises, Inc.) responded to FMCSA's continued requirement for 
submitters to provide the complete PAR to participate in the program. 
Siskiyou Transportation, Inc. and ATA want FMCSA to accept requests 
that do not include a PAR but have other crash information reports. 
Werner Enterprises, Inc. would like the PAR requirement rescinded for 
requests where there is sufficient video footage of the event. Both ATA 
and Werner Enterprises, Inc. commented on the difficulty and delay that 
is associated with obtaining PARs.
FMCSA Response
    FMCSA will continue to require a PAR issued from a law enforcement 
agency as a condition of eligibility for the program. This official 
documentation is needed to corroborate other information provided with 
the RDR to ensure the correct carrier, driver, and crash event is being 
reviewed for preventability. Additionally, the Agency found during the 
2-year Crash Preventability Demonstration Program that the PAR is best 
single source of crash information and that the majority of PARs 
submitted contained sufficient detail to complete a preventability 
review (84 FR 38087).

C. Impacts to SMS and PSP

    FMCSA did not propose changes to the use, display, and notations of 
determinations from the CPDP on SMS and PSP. Six commenters (the 
National Motor Freight Traffic Association (NMFTA), TMC Transportation, 
the Owner-Operators OOIDA, Lewis Britton, Jeff Loggins, and Sanborn, 
Brandon, Duvall & Bobbitt Co., L.P.A.) recommended that FMCSA modify 
how crashes submitted to the program, and those determined ``Not 
Preventable,'' are handled on SMS and PSP. NMFTA and OOIDA want FMCSA 
to remove crashes determined ``Not Preventable'' entirely from SMS. TMC 
Transportation would like a 30-day grace period before a crash is 
posted to SMS so the carrier has an opportunity to request a 
preventability review of the crash. Lewis Britton, Jeff Loggins, and 
Sanborn, Brandon, Duvall & Bobbitt Co., L.P.A. would like FMCSA to 
suspend the use of crashes submitted to the CPDP in SMS calculations 
while the requests are under review.
FMCSA Response
    FMCSA is not making changes to the way determinations from the CPDP 
are used, displayed, or notated on SMS and PSP at this time. FMCSA will 
continue to list Not Preventable crashes on the public SMS website. 
However, the crash will continue to appear in a separate table from all 
other crashes. Crashes found to be ``Not Preventable'' will not be 
included in the calculation of the motor carrier's Crash Indicator 
BASIC. Crashes found to be ``Preventable'' and ``Undecided'' will 
continue to be used the calculation of the Crash Indicator BASIC. Only 
not preventable determinations will continue to be noted on the 
driver's PSP record. 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.
    FMCSA is committed to ensuring that its methodology for 
prioritizing motor carriers for interventions accurately reflects 
carriers' safety performance. The Agency will continue to evaluate the 
methodology's effectiveness and propose improvements when needed.

D. Implementation of Crash Type Updates to CPDP

    FMCSA stated in the April 2023, notice that it expected to have a 
start date for the new crash types, and the

[[Page 96273]]

new crash types would not be retroactive, that is, a crash that 
occurred before the start date of the new crash types would not become 
eligible for submission under the CPDP after the start date. Keith 
Shields, John Casey, and an anonymous commenter requested that FMCSA 
apply eligibility of the new crash types retroactively. Keith Shields 
asked that the new crash types apply to crashes that occurred 1 year to 
18 months before the start date of the new crash types. The anonymous 
commenter would like a 12-to-24-month retroactive application for the 
acceptance of crashes with video evidence.
FMCSA Response
    The eligibility criteria for the new and updated crash types will 
not be applied retroactively to ensure that crashes that occurred 
during the same period are analyzed with a consistent set of criteria. 
The Agency will accept RDRs for the new and updated crash types for 
crashes that occur on or after December 1, 2024. FMCSA will announce on 
the CPDP website at https://www.fmcsa.dot.gov/crash-preventability-determination-program when DataQs will be available to accept the 
submissions of the new and updated crash types. Crashes that occur 
before December 1, 2024, will be evaluated under the eligibility 
criteria established on May 2020 (87 FR 27017).
    The Agency reworded the updated crash type to expand eligibility by 
including indirect types of crashes. For example, ``CMV was struck by a 
driver who experienced a medical issue which contributed to the crash'' 
has changed to ``CMV was struck because another motorist experienced a 
medical issue which contributed to the crash,'' which allows for 
scenarios where a motorist (V1) experiencing a medical issue strikes 
another vehicle (V2) which then strikes a CMV (V3). To be eligible for 
the prior definition, V1 had to directly strike V3, but the updated 
changes allow for an indirect strike.
    The below table shows the current list and new and updated eligible 
crash types for crashes occurring on or after December 1, 2024:

------------------------------------------------------------------------
                                          Final list of new and updated
                                            eligible crash types (for
  Current list of eligible crash types    crashes occurring on or after
                                                December 1, 2024)
------------------------------------------------------------------------
1. CMV was struck in the rear by a       1. CMV was struck in the rear
 motorist.                                by a motorist.
2. CMV was struck on the side at the     2. CMV was struck on the side
 rear by a motorist.                      at the rear by a motorist.
3. MV was struck while legally stopped   3. CMV was struck while legally
 at a traffic control device (e.g.,       stopped at a traffic control
 stop sign, red light or yield); or       device or parked, including
 while parked, including while the        while the vehicle was
 vehicle was unattended.                  unattended.
4. CMV was struck by a motorist driving  4. CMV was struck because
 in the wrong direction.                  another motorist was driving
                                          in the wrong direction.
5. CMV was struck by another motorist
 in a crash when a driver was operating
 in the wrong direction.
6. CMV was struck by a vehicle that was  5. CMV was struck because
 making a U-turn or illegal turn.         another motorist was making a
                                          U-turn or illegal turn.
7. CMV was struck by a vehicle that did  6. CMV was struck because
 not stop or slow in traffic.             another motorist did not stop
                                          or slow in traffic.
8. CMV was struck by a vehicle that      7. CMV was struck because
 failed to stop at a traffic control      another motorist failed to
 device.                                  stop at a traffic control
                                          device.
9. CMV was struck by an individual       8. CMV was struck because
 under the influence (or related          another individual was under
 violation, such as operating while       the influence (or related
 intoxicated), according to the legal     violation, such as operating
 standard of the jurisdiction where the   while intoxicated), according
 crash occurred, where the individual     to the legal standard of the
 was charged or arrested, failed a        jurisdiction where the crash
 field or other test, or refused to       occurred.
 test.
10. CMV was struck 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 or other test, or refused to
 test.
11. CMV was struck by a driver who       9. CMV was struck because
 experienced a medical issue which        another motorist experienced a
 contributed to the crash.                medical issue which
                                          contributed to the crash.
12. CMV was struck by a driver who       10. CMV was struck because
 admitted falling asleep or admitted      another motorist fell asleep.
 distracted driving (e.g., cellphone,
 GPS, passengers, other).
                                         11. CMV was struck because
                                          another motorist was
                                          distracted (e.g., cellphone,
                                          GPS, passengers, other).
13. CMV was struck by cargo, equipment,  12. CMV was struck by cargo or
 or debris (e.g., fallen rock, fallen     equipment from another
 trees, unidentifiable items in the       vehicle, or debris (e.g.,
 road); or crash was a result of an       fallen rock, fallen trees,
 infrastructure failure.                  unidentifiable items in the
                                          road).
                                         13. CMV crash was a result of
                                          an infrastructure failure.
14. CMV struck an animal...............  14. CMV struck an animal.
15. CMV struck an individual committing  15. CMV crash involving a
 or attempting to commit suicide.         suicide death or suicide
                                          attempt.
                                         16. CMV was struck on the side
                                          by a motorist operating in the
                                          same direction as CMV.
                                         17. CMV was struck because
                                          another motorist was entering
                                          the roadway from a private
                                          driveway or parking lot.
                                         18. CMV was struck because
                                          another motorist lost control
                                          of the vehicle.
                                         19. CMV was involved in a crash
                                          with a non-motorist.
16. CMV was involved in a crash type     20. CMV was involved in a crash
 that seldom occurs and does not meet     type that seldom occurs and
 another eligible crash type (e.g.,       does not meet another eligible
 being struck by an airplane or           crash type (e.g., being struck
 skydiver or being struck by a deceased   by an airplane, skydiver, or a
 driver).                                 deceased driver in another
                                          vehicle).

[[Page 96274]]

 
                                         21. Any other type of crash,
                                          not listed above, where a CMV
                                          was involved and a video
                                          demonstrates the sequence of
                                          events of the crash.
------------------------------------------------------------------------

V. Other Comments on Changes Not Proposed

    In addition to the changes proposed in the April 2023, notice, six 
commenters (Jeff Loggins, Steve Davis, AIST Safety Consulting, Knight-
Swift Transportation, Siskiyou Transportation, Inc., and TMC 
Transportation) requested that FMCSA expand the eligibility 
requirements for the crash type ``CMV was struck because another 
motorist was driving in the wrong direction.'' The current eligibility 
guide states that the crash must have the following elements, ``The 
vehicle in the crash was driving in the wrong direction (e.g., 
northbound in the southbound lanes) AND the vehicle was completely in 
the wrong lane (i.e., not partially across the center line).'' All six 
commenters want FMCSA to consider crashes where the other vehicle was 
partially across the center line as eligible under this crash type. 
Steve Davis made the recommendation, ``My recommendation is that if any 
portion of the oncoming vehicle crosses the center line and strikes our 
CMV resulting in a DOT Recordable accident, then it should be deemed as 
non-preventable on the part of the motor carrier.'' AIST Safety 
Consulting would like FMCSA to, ``Broaden eligibility for Wrong 
Direction cases . . . Consider cases where a vehicle is partially in 
the opposite lane, making it impossible for a CMV to avoid a collision 
without swerving dangerously.'' The comments from Knight-Swift 
Transportation included the suggestion, ``Wrong way accidents--we would 
like the CPDP amended to allow for wrong way accident to allow DataQ 
submission when:
    1. Not Fully Over the Centerline--The vehicle that struck the CMV 
was not completely over the center line when the crash occurred.
    2. Opposing Direction Sideswipe--The vehicle that struck the CMV 
was not completely over the center line when it side-swiped the CMV.
    Three commenters would like FMCSA to offer educational resources 
for carriers and drivers submitting requests to CPDP. Joshua Anderson 
would like additional fields when submitting an RDR to help users 
select the appropriate crash type. AIST Safety Consulting recommends 
adding a glossary to the Eligibility Guide that is available at https://fmcsa.dot.gov/crash-preventability-determination-program. And ATA 
wants enhanced resources for carriers that explain the RDR process, 
including minimum documentation requirements.
FMCSA Response
    The current eligibility guide states that the crash must have the 
following elements, ``The vehicle in the crash was driving in the wrong 
direction (e.g., northbound in the southbound lanes) AND the vehicle 
was completely in the wrong lane (i.e., not partially across the center 
line).'' In response to the commenters, the Agency is staying with the 
current criteria for the ``wrong direction'' crash type and will NOT 
allow for partial crossing of the center line. As stated above, the 
crash types that are eligible for the CPDP are less complex crash 
events that do not require extensive expertise to review. However, the 
addition of the new crash type, where a CMV was involved and a video 
demonstrates the sequence of events of the crash, may allow for partial 
crossing of the center line types of crashes.
    FMCSA will continue to update the Eligibility Guide to ensure it 
provides the most up-to-date criteria for each crash type. All the 
resources published on the https://www.fmcsa.dot.gov/crash-preventability-determination-program website will be updated to ensure 
submitters have the resources to make a complete request.

VII. Next Steps

    FMCSA will post information on the CPDP website https://fmcsa.dot.gov/crash-preventability-determination-program notifying 
submitters of the date when FMCSA will accept submissions under the new 
and updated crash types set forth in this notice.

Vincent G. White,
Deputy Administrator.
[FR Doc. 2024-28377 Filed 12-3-24; 8:45 am]
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