Crash Preventability Determination Program

Cited as:85 FR 27017
Court:Federal Motor Carrier Safety Administration, Transportation Department
Publication Date:06 May 2020
Record Number:2020-09679
Federal Register, Volume 85 Issue 88 (Wednesday, May 6, 2020)
[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]
                =======================================================================
                -----------------------------------------------------------------------
                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.
                -----------------------------------------------------------------------
                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