Considerations for FMCSA Crash Preventability Program

On Wednesday, July 31, 2019 the FMCSA Administrator gave notice¸ that the Pilot Crash Preventability Program begun in July 2017 will be made permanent with modifications. Here is what is being modified:

  1. Process will be streamlined
  2. Non-Preventable Crashes Removed from SMS (CSA Scores)
  3. The eight Categories of acceptable crash submissions will be extended to 15 Categories
  4. A 60-day comment period will be opened upon publication of this proposal in the Federal Register

I encourage all stakeholders to read the 19 page proposal and share your thoughts through the public comment process. Motor carriers, insurers, lawyers, trade associations, and others should all take time to understand this program and its proposed changes and speak up. This is important, folks.

To get you thinking, I will try and summarize the Notice. But please, be thorough, do your homework, read the proposal and form your own opinions before the comment period ends.

What follows is my reading, and my own analysis.

Introduction

FMCSA reports that between Aug. 1, 2017 and May 31, 2019 (22 months), they received 12,249 submissions through the DataQ’s system, which they call Request For Data Review (RDR’s). Of those requests, 5,619 met the criteria of at least one of the eight acceptable categories. That’s 45.9% of RDR’s that were actually scrutinized, rejecting 54.1% that were not reviewed because they did not fall into one of the pre-defined categories. FMCSA does nothing to summarize the rejected RDR’s. That would have been interesting to know what was there.

I have always believed that the pilot program should have been open to all crashes with the burden on the motor carrier to submit compelling evidence of non-preventability. It would have been a better pilot if we had used all crashes to organize categories, rather than pre-selecting based on opinions. So, we should be clear, a MINORITY of submitted RDR’s were reviewed. (NOTE: FMCSA states that 56% met the criteria. This looks like a small math error as 5619/12,249 does not equal 56%.)

Of the RDR’s reviewed, 69.9% were in the category: Commercial Motor vehicle (CMV) was struck from the rear. A distant second place, at 7.9% was: CMV struck while legally parked. You can see the breakdown of all categories on page 6/7 of the Notice.

Streamlining the Process

During the pilot period, all qualified RDR’s were held for 30 days following determination so that any interested party could submit information in opposition to the determination. FMCSA reports that not a single public comment was submitted during the pilot period. They have, therefore, proposed to streamline the permanent program by removing this public comment component.

SMS will reflect Determinations

The Notice states that the Safety Measurement System (SMS) website will be updated when non-preventable crashes are determined. To translate, this means official CSA Scores will now reflect the removal of non-preventable crashes for both Motor Carrier and Driver.

Eight plus eight become 15

The category shifts are the meat of the Notice. There are some interesting proposals in here. Some are positive, some less so, some need further clarity, and some are just downright mysteries. I still wonder why we need to pre-categorize at all.

On page five of the Notice, FMCSA lists the eight acceptable categories from the pilot program. My table below aligns pilot to permanent for ease of comparison. The order does not represent any priority or number of RDR’s in that category. There is nothing alphabetical about the categories and they don’t seem to have astrological significance.

Modifications to Pilot Categories

Thoughts, Concerns, and Questions

  • They determined a partial crossover “going wrong direction” is acceptable, but nothing bad ever happens on partial crossovers, right?
  • “No rear sideswipes” (see New category 8/9) technically makes sense as one cannot rear end and sideswipe at the same time.
  • Why is there a new category for “stopped in traffic”?
  • Suicide intent? How does a MC document suicidal intent?
  • Animal swerves no longer qualify. Still, why is Disabling dropped?
  • Infrastructure/Cargo drops reference to falling trees/rocks. Is this all considered debris?

Then there are the new categories to consider:

More Thoughts, Concerns and Questions

  • 5:00 – 7:00? This seems like artificial precision that rarely exists or is determinable at the scene.#8 and #9 taken together:
    • #8 CMV at 1MPH in traffic can only submit if side impact is between 5:00 and 7:00.
    • #9 The instant the CMV reaches 0MPH, all side impacts count.
  • If OV is making a Legal U-turn and CMV operates illegally – say runs a light – why would OV making a legal U-turn automatically qualify?
  • Medical issue: Submitter not only has the burden of knowing the intent of a suicidal person but must also be able to determine the health issues of OV Driver. As soon as we’re done talking to PETA, we better get the HIPPA folks on the line, we’re going to need to see those medical records.
  • The Driver admits to fatigue or distraction is a presumptuous expectation. “Yes officer, I’ve been on the phone and texting the last hour and it made me sleepy. I’m so sorry,” said no one…ever.
  • Under the influence? Presumably this is an intoxicated person – perhaps in a vehicle, perhaps just stumbling down the road – but manages to cause the crash or steps into traffic? OV and CMV crash; all kinds of chaos ensue; law enforcement is summoned; drivers exchange information, give assistance, and perhaps things get heated. When the cops arrive, what are the chances that intoxicated person is still around?
  • OV wrong direction: So, OV2 is traveling in front of CMV. OV1 crosses head-on into the wrong lane, but not completely. OV2 reacts and swerves to save his young family causing CMV to run off the road. Not qualified because OV1 did not completely enter the wrong way lane. Sir, you should not have swerved!

My overall feedback comes down to three areas of concern:

Why do we need to pre-define categories?

We don’t need pre-invented categories or to show the data on all the rejected crashes and explain why they could not be reviewed, and why the data supports these category definitions. Use the trained reviewers burdened with the submitting motor carrier to show enough evidence using the PAR’s and other data, technology, video, telematics, AV Tech, witnesses, etc. There are as many fact patterns to crashes as there are crashes. Let’s determine which are preventable and which are not.

Assume we go forward with Categories.

A significant amount of clarity is needed in many of these categories. For instance:

  • Are falling trees and rocks still qualified? They’re no longer specifically called out. Can we assume all details of pilot categories carry forward unless specifically removed?
  • 5:00 to 7:00 sideswipes, but only if moving. How did they support this?
  • Proof of suicidal intent? Almost impossible to see how the motor carrier gets this information.
  • Medical issue caused crash? No way Motor Carrier gets access to the health and medical records of other drivers. Better go run this one by HHS and get HIPPA exemptions.
Category conflicts abound

I’ll make one up as a hypothetical to illustrate potential conflict.
OV Driver under the influence partially crosses the center line, which causes a deer to be spooked and leap onto the roadway. This scares OV2 driver who has a medical issue and faints, resulting in OV crash into a bridge abutment causing a big chunk of concrete to fall off into the path of a CMV. The CMV swerves and successfully avoids the concrete chunk by partially crossing the center line…but ends up striking the very same deer whose lifeless body flies into a tree, that which then falls onto the roadway and into the path of a second CMV, who ultimately has the recordable crash.
So, again, why do we need to pre-define categories?

I encourage all interested parties to do their due diligence and read the Notice. Then, make your opinions heard in the now active 60-day window. You can get started giving them your thoughts here.