Fault Line
FMCSA proposes demonstration program to eliminate non-preventable crashes from motor carrier safety records

By Jami Jones, managing editor

It’s never a good day and likely one of the worst that any truck driver experiences – the day they are involved in a crash.

In addition to the obvious fear of physical harm, financial setbacks and downtime, what many may see as insult to injury is the fact that currently the Federal Motor Carrier Safety Administration does not take fault into consideration.

Safety measurements are calculated and enforcement decisions are made within the Compliance, Safety, Accountability program. Crashes are tallied in a motor carrier’s profile as towaway, injury or fatal. That’s it. No consideration of fault is factored in.

For years, drivers, owner-operators and motor carriers have called foul on this practice.

The agency has sidestepped the issue with research and studies that land miles away from a solution. The Large Truck Crash Causation released in 2006 was supposed to answer what the “causes” of large truck-involved crashes were. Only it didn’t. It leaned on statistical definitions of cause in relationship to relative risk. In the simplest of terms, rather than reporting who was at fault and why, the study was actually a collision-avoidance or crash-prevention study focused on pre-collision events rather than the consequences.

Time went on and motor carriers continued to be saddled with crash reports in which they played no role on their public CSA profiles – likely losing jobs and business – drivers and motor carriers contend.

A recent announcement by FMCSA indicates that there could be meaningful changes in the works.

The agency is now taking its first legitimate step toward implementing a program that could, in four instances, eliminate non-preventable crashes from the CSA Safety Measurement System, or SMS.

Not everyone is buying in

For the vast majority of the trucking industry, using only “at fault” or “preventable” crashes in assessing safety scores or deciding on enforcement seems just. Groups like the Owner-Operator Independent Drivers Association, American Trucking Associations, and the American Bus Association, to name a few, have advocated to remove a de facto determination of fault. But OOIDA has serious reservations about the yet-to-evolve details of what the program may entail.

Opposition to eliminating non-preventable crashes was detailed in a companion filing to the Federal Register on crash weighting. That notice detailed responses to an earlier request for comment on how crashes can be used to assess the safety of a motor carrier.

There are those who advocate counting all crashes, with no regard to fault, against motor carriers in determining their future crash risk. Most vocal on this front are Road Safe America, Truck Safety Coalition, and Advocates for Highway and Auto Safety.

The opposition of the groups is not the first time that such a claim has been made. In fact, the agency even contends that is the case in the demonstration program proposal.

“Research on this issue conducted by FMCSA, as well as independent organizations, has demonstrated that crash involvement, regardless of role in the crash is a strong indicator of future crash risk,” the notice states.

Agency leadership has even testified before Congress that involvement in any crash is an indicator that the driver or motor carrier is more likely to be involved in a future crash.

The latest research from the agency claims that within CSA, motor carriers with the highest percentile rankings (referred to as the “worst scores” on the streets) in the Crash Indicator category or BASIC have crash rates, again without regard to fault, that are 85 percent higher than the national average.

The plan

In spite of the opposition, and FMCSA’s own justification for including non-preventable crashes in its safety scoring and enforcement prioritization, the agency is moving forward with a demonstration program to test methods for determining if a crash was non-preventable.

In early July, FMCSA published a notice in the Federal Register proposing a demonstration program to evaluate the feasibility of determining preventability in four types of crashes: driving under the influence, driving the wrong direction, striking a commercial motor vehicle in the rear and striking a CMV while it is legally stopped.

In addition to the four specific types of crashes, the agency is also envisioning review of other crashes that are generally non-preventable such as when an individual commits suicide by stepping or driving in front of a truck, when a vehicle hits an animal, or when a crash results from infrastructure failure.

The trick, and what the agency is asking for the public’s help in determining, is what is required to determine if the crash was non-preventable.

So far, the agency is planning to request any proof of conviction, all available law enforcement reports, insurance reports from all parties involved in the crash, and any other relevant information. The agency also is asking the public to weigh in on what other documentation would be useful to determine whether a crash

was preventable.

The call

The entire determination process will be handled, possibly, through the DataQ challenge system. However, the agency won’t be routing crash reports along with the supporting documentation back to the states for a determination.

In an earlier request for comments regarding crash fault or preventability, OOIDA stressed the need that due process must be accounted for in the procedures that will lead to a determination of preventability.

“When the government seeks to determine whether an individual or company is at fault for causing bodily injuries or property damage, it must provide the accused a right to a hearing before a neutral fact-finder; the ability to offer evidence and witnesses; and the opportunity to challenge evidence and witnesses against them.

“Under our country’s systems of legal fairness and due process, FMCSA may not unilaterally determine fault, notify the public of that determination, and punish the motor carrier by damaging its reputation,” OOIDA stated in previous comments.

The agency did not specifically address OOIDA’s comments. Rather, the proposal proceeded in detailing a loose plan for how a determination of preventability would be decided.

A request for review of a crash will be handled by either agency staff or a third-party contractor, using the definition of preventability in Part 385 of the federal regulations.

The agency is proposing that the group of reviewers will determine one of three things:

n Non-preventable and remove the crash from the safety scoring system;

n Preventable and the crash stays and is calculated into the Crash BASIC; or

n Undecided and the crash stays and is calculated into the Crash BASIC and a note that preventability could not be determined will be attached to the record.

Of note, operating a truck while under an out-of-service order will land the determination as preventable no matter who was at fault.

The agency is also proposing quality control measures such as a certain percentage of reviews to be checked by a different reviewer to confirm consistent decisions are being made. It’s also suggested that a supervisor will be responsible for breaking ties.

Road ahead

The agency will accept comments and input on the proposed demonstration program until Sept. 12. After that the agency will decide whether to proceed with the two-year demonstration program.

Throughout the program the agency will collect data on the crashes reviewed and the subsequent crash experience of motor carriers that successfully have non-preventable crashes removed from their CSA profiles.

The agency will evaluate what if any changes should follow the demonstration program in the way it handles crash reporting in the CSA safety measurement program.