FMCSA Crash Preventability Program
Announced Pilot Program of Questionable Value to Truckers
By Joe Rajkovacz, WSTA Director of Governmental Affairs
Washington D.C. – On July 12, 2016 the Federal Motor Carrier Safety Administration (FMCSA or Agency) published a long awaited notice to establish a demonstration program where motor carriers could potentially have crashes where they bore no fault eliminated from their safety profile maintained by FMCSA.
The trucking industry has long maintained that it is unfair for the feds to maintain crash data on motor carriers that ignores who was “at fault” in causing a crash to occur. That erroneous data is used by shippers and insurers to determine whether they’d contract with a carrier or underwrite them for insurance coverage.
FMCSA has always held to the position that any crash involvement was a predictor of future crash involvement and historically has refused to reason with the trucking industry on this topic instead relying on anti-trucking (a.k.a. safety groups) to lobby congress and keep the status quo.
With the signing of the new highway bill (Fixing America’s Surface Transportation Act, or “FAST Act”) this year, congress forced FMCSA to not only acknowledge this issue, but study it too and at the same time ignored protest from anti-trucking groups.
As part of reforming the Compliance, Safety Accountability (CSA) program, congress mandated that FMCSA perform a “Correlation Study” on it signature motor carrier safety monitoring system. The mandated study is intended to scientifically prove or disprove a statistical relationship between particular violations and whether there is a greater risk of crash involvement. One area that must be studied is, “(E) the accuracy of safety data, including crash data from crashes in which a motor carrier was free from fault.”
Crash Preventability Demonstration Program
FMCSA is proposing to allow motor carriers to file a request for data review (RDR) through its data correction system known as DATAQ’s on a subset of crashes to have them officially declared “not preventable” and removed from a carrier’s safety profile. There is a hitch though, supporting documents must also be supplied and FMCSA’s current proposal sets a bar too high for most to comply with.
A crash would be considered “not preventable” if the CMV was struck by a motorist who was convicted of one of the four following offenses or a related offense:
- Driving under the influence;
- Driving the wrong direction;
- Striking the CMV in the rear; or
- Striking the CMV while it was legally stopped.
RDRs could also be submitted through DataQs when the crash did not involve other vehicles, such as crashes in which an individual committed suicide by stepping or driving in front of the vehicle or the vehicle was incapacitated by an animal in the roadway or the crash was the result of an infrastructure failure.
Supporting Documents Must Accompany DataQ Challenge
The Agency proposes that evidence of a conviction, as defined in 49 CFR 383.5 and 390.5, for one of the above offenses must be submitted with the RDR to document that the crash was not preventable by the motor carrier or driver. In addition to documentation of the conviction, these RDRs should include all available law enforcement reports, insurance reports from all parties involved in the crash, and any other relevant information.
The requirement to supply evidence of a “conviction” creates a paradox for crashes involving suicide by truck and virtually all fatal crash involvement. Cops don’t issue citations to dead people. Court’s don’t convict dead people. Those particular types of crashes are the ones that have the most negative affect on both a motor carrier and driver yet it appears by FMCSA’s announced requirements they are not serious about granting any relief from the derogatory display of these kinds of crash involvement.
Other Problems with the Announcement
Not unbelievably, FMCSA is going to allow unaffected/uninvolved third parties (the public) to challenge any decision in favor of the motor carrier. Safety advocates will have a full-time job doing the bidding of trial attorneys because a favorable determination by the feds may well end the financial “jackpot” in civil litigation where even a small percentage of negligence (fault) leads to outlandish awards. Trial attorneys themselves will turn this docketing system into a form of an early appeals process to keep a case alive.
FMCSA also said they could make determinations on submitted reviews that a crash was “preventable.” If you could be facing litigation over a crash, having the feds publicly publish a determination that a crash was preventable may well make it impossible to defend yourself in a civil court.
Drivers themselves are “left out in the cold” by FMCSA’s proposal. Nowhere it the published Notice does FMCSA propose to allow a drivers to make a challenge and eliminate a “not preventable” crash from the PSP data disseminated by FMCSA. It’s ironic that a single-truck owner-operator with his own authority could challenge a crash as a motor carrier, perhaps have it eliminated, but the crash will still be reported out on him individually should someone request his PSP report from FMCSA.
FMCSA Definition of “Preventable”
The definition is obscurely placed in Appendix A to Part 385 and reads:
“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.”
There is a lot of subjectivity on the part of a reviewer that can go into this definition causing what one might think is an obvious “non-preventable” crash being determined to be “preventable.” Being parked on the shoulder of a roadway without a genuine emergency and being rear-ended is an example.
Whether FMCSA will refine what is needed to challenge a crash remains to be seen. Unfortunately, the largest trucking lobby in Washington D.C. issued a press release on July 7th praising a proposal that in our view is not ready for prime-time yet; “Today, [the] American Trucking Associations expressed their gratitude that the Federal Motor Carrier Safety Administration would be launching a pilot program to allow carriers to have non-preventable crashes stricken from their record.” Their news release was echoed by most trucking media without thought or in-depth analysis of a mere three and a half page notice.
If this proposal is not modified, our advice to members – seek legal counsel before participating in this charade.
The association will be submitting formal comments to FMCSA on their proposed Crash Preventability Program which are due by September 12, 2016.