[Federal Register Volume 81, Number 133 (Tuesday, July 12, 2016)]
[Notices]
[Pages 45210-45213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16426]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2014-0177]


Crash Preventability Program

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice; request for public comment.

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SUMMARY: On January 23, 2015, FMCSA announced the results of the 
Agency's study on the feasibility of using a motor carrier's role in 
crashes in the assessment of the company's safety. This study assessed: 
Whether police accident reports (PARs) provide sufficient, consistent, 
and reliable information to support crash-weighting determinations; 
whether a crash-weighting determination process would offer an even 
stronger predictor of crash risk than overall crash involvement and how 
crash weighting would be implemented in the Agency's Safety Measurement 
System (SMS); and how FMCSA might manage a process for making crash-
weighting determinations, including the acceptance of public input.
    Based on the feedback received in response to the January 23, 2015, 
Federal Register notice, FMCSA announced in a separate notice elsewhere 
in today's Federal Register that it conducted additional analysis in 
response to comments received. However, in this notice, FMCSA is 
proposing to develop and implement a demonstration program to determine 
the efficacy of a program to conduct preventability determinations on 
certain types of crashes that generally are less complex. This notice 
provides FMCSA's proposal for a demonstration program and seeks 
additional comment.

DATES: Comments must be received on or before September 12, 2016.

ADDRESSES: You may submit comments bearing the Federal Docket 
Management System (FDMS) Docket ID FMCSA-2014-0177 using any of the 
following methods:
    Federal eRulemaking Portal: Go to www.regulations.gov. Follow the 
on-line instructions for submitting comments.
    Mail: Docket Management Facility; U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, 
Room W12-140, Washington, DC 0590-0001.
    Hand Delivery or Courier: West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5

[[Page 45211]]

p.m., ET, Monday through Friday, except Federal holidays.
    Fax: 1-202-493-2251.
    Each submission must include the Agency name and the docket number 
for this notice. Note that DOT posts all comments received without 
change to www.regulations.gov, including any personal information 
included in a comment. Please see the Privacy Act heading below.
    Docket: For access to the docket to read background documents or 
comments, go to www.regulations.gov at any time or visit Room W12-140 
on the ground level of the West Building, 1200 New Jersey Avenue SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays. The on-line Federal document management system 
is available 24 hours each day, 365 days each year. If you want 
acknowledgment that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgement 
page that appears after submitting comments on-line.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: For information contact Mr. Catterson 
Oh, Compliance Division, Federal Motor Carrier Safety Administration, 
1200 New Jersey Avenue SE., Washington, DC 20590, Telephone 202-366-
6160 or by email: [email protected]. If you have questions on 
viewing or submitting material to the docket, contact Docket 
Operations, telephone (202) 366-9826.

SUPPLEMENTAL INFORMATION

I. Public Participation and Request for Comments

    FMCSA encourages you to participate by submitting comments and 
related materials.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
notice (FMCSA-2014-0177), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online or by fax, mail, or hand delivery, but please use only one of 
these means. FMCSA recommends that you include your name and a mailing 
address, an email address, or a phone number in the body of your 
document so the Agency can contact you if it has questions regarding 
your submission.
    To submit your comment online, go to http://www.regulations.gov and 
put the docket number, ``FMCSA-2014-0177'' in the ``Keyword'' box, and 
click ``Search.'' When the new screen appears, click on ``Comment 
Now!'' button and type your comment into the text box in the following 
screen. Choose whether you are submitting your comment as an individual 
or on behalf of a third party and then submit. If you submit your 
comments by mail or hand delivery, submit them in an unbound format, no 
larger than 8\1/2\ by 11 inches, suitable for copying and electronic 
filing. If you submit comments by mail and would like to know that they 
reached the facility, please enclose a stamped, self-addressed postcard 
or envelope.
    FMCSA will consider all comments and material received during the 
comment period and may change this notice based on your comments.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov and 
insert the docket number, ``FMCSA-2014-0177'' in the ``Keyword'' box 
and click ``Search.'' Next, click ``Open Docket Folder'' button and 
choose the document listed to review. If you do not have access to the 
Internet, you may view the docket online by visiting the Docket 
Management Facility in Room W12-140 on the ground floor of the DOT West 
Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

II. Background

    The Compliance, Safety, Accountability (CSA) program is FMCSA's 
enforcement model that allows the Agency and its State partners to 
identify and address motor carrier safety problems before crashes 
occur. The Agency's SMS quantifies the on-road safety performance of 
motor carriers to prioritize enforcement resources. FMCSA first 
announced the implementation of the SMS in the Federal Register on 
April 9, 2010 (75 FR 18256) (Docket No. FMCSA-2004-18898). Violations 
are sorted into Behavior Analysis and Safety Improvement Categories 
(BASICs), which include a Crash Indicator BASIC.
    Since its implementation in 2010, the SMS has used recordable-crash 
records involving commercial motor vehicles (CMVs) that are submitted 
by the States through the Agency's Motor Carrier Management Information 
System (MCMIS), in addition to safety performance in other BASICs, to 
assess motor carriers' crash histories and prioritize carriers for 
safety interventions. The Agency uses the definition of ``accident'' in 
49 CFR 390.5.
    The crash data reported to FMCSA by the States does not specify a 
motor carrier's role in the crash or whether the crash was preventable. 
The Crash Indicator BASIC weights crashes based on crash severity, with 
more weight given to fatality and injury crashes than those that 
resulted in a vehicle towed from the scene with no injuries or 
fatalities. While the public SMS Web site provides information on the 
recordable crashes of motor carriers, the Crash Indicator BASIC 
percentiles created by the system have never been publicly available. 
The Crash Indicator BASIC percentiles are available only to motor 
carriers who log in to view their own data, as well as to Agency and 
law enforcement users.
    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. FMCSA's 
recently completed SMS Effectiveness Test shows that, as a group, motor 
carriers with high percentiles in the Crash Indicator BASIC have crash 
rates that are 85 percent higher than the national average. (https://csa.fmcsa.dot.gov/Documents/CSMS_Effectiveness_Test_Final_Report.pdf). 
This document and related reports are available in the docket of this 
notice.
    Because the Crash Indicator BASIC includes all crashes--without 
regard to the preventability of the crash, stakeholders have expressed 
concern that it may not identify the highest-risk motor carriers for 
interventions. In addition, some industry representatives have advised 
that, while the Crash Indicator BASIC percentile is not publicly 
available, some customers are requiring motor carriers to disclose this 
information before committing to a contract.
    To identify a methodology and process for conducting preventability 
reviews, FMCSA completed a study on the feasibility of using a motor 
carrier's role in crashes as an indicator of future crash risk. The 
analysis focused only on three broad questions addressing the 
procedural issues surrounding a crash-weighting program and the 
feasibility of implementing such a program; it did not

[[Page 45212]]

focus on any other implications of the program.
    The three questions were individually designed and analyzed to 
inform Agency decisions.
    1. Do Police Accident Reports (PARs) provide sufficient, 
consistent, and reliable information to support crash-weighting 
determinations?
    2. Would a crash-weighting determination process offer an even 
stronger predictor of crash risk than overall crash involvement, and 
how would crash weighting be implemented in the SMS?
    3. Depending upon the analysis results for the questions above, how 
might FMCSA manage the process for making crash-weighting 
determinations, including public input to the process?
    The Agency's research plan was posted on the Agency's Web site on 
July 23, 2012, at http://csa.fmcsa.dot.gov/documents/CrashWeightingResearchPlan_7-2012.pdf. The resulting report is titled 
``Crash Weighting Analysis''; it is in the docket associated with this 
notice. The draft research was peer reviewed, and the peer review 
recommendations are also in the docket.
    The comments to the January 23, 2015, Federal Register notice 
focused on methodology changes needed in SMS, and the preventability 
determination process.
    Elsewhere in today's Federal Register, FMCSA responds to the 
comments and provides the results of additional analysis on removing 
tow-away crashes, removing the extra weighting for fatal and injury 
crashes, and using a higher minimum number of crashes for data 
sufficiency purposes. Additionally, FMCSA advised that it would publish 
a separate Federal Register notice seeking comments and input on a 
demonstration program to make preventability determinations on some 
specific types of crashes. This notice fulfills that commitment.

III. Proposal for Demonstration Program

A. Types of Crashes

    In response to FMCSA's January 23, 2015, Federal Register notice, 
the American Trucking Associations (ATA) provided a list of certain 
types of non-preventable crashes and suggested that FMCSA establish a 
process by which documents could be submitted on these crashes and they 
could be removed from the motor carriers' records. Additionally, ATA 
recommended that FMCSA consider a crash non-preventable when an 
individual commits suicide or vehicles are incapacitated by animals. 
FMCSA considered this list and, as a result, proposes that on an 
effective date to be named in a future Federal Register notice, the 
Agency would begin a demonstration program under which it would accept 
requests for data review (RDRs) that seek to establish the non-
preventability of certain crashes through its national data correction 
system known as DataQs. The Agency would accept an RDR as part of this 
program when documentation established that the crash was not 
preventable by the motor carrier or commercial driver.
    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:
    1. Driving under the influence;
    2. Driving the wrong direction;
    3. Striking the CMV in the rear; or
    4. Striking the CMV while it was legally stopped.
    FMCSA is specifically interested in information related 
specifically to these four crash scenarios that would be useful for 
this demonstration program.
    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. However, FMCSA specifically seeks 
comments on what other documentation would be sufficient to make this 
determination.
    FMCSA notes that this list is not identical to ATA's proposed list. 
Because some of the crash scenarios submitted by ATA were too broadly 
defined and/or may not result in convictions, the Agency is not using 
the suggested standard of ``was found responsible by law enforcement 
for the crash.'' Previous research by the Agency showed that PARs do 
not generally provide a clear determination as to the preventability of 
a crash. Relying on a conviction related to one of the crash scenarios 
described ensures the Agency will have a clear record on which to base 
its determination.
    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. The RDR must present 
sufficient evidence that the driver of the CMV took reasonable action 
to avoid the crash and did not contribute to the crash. If, for 
example, a CMV hit an animal but the CMV driver was on his/her 
cellphone or speeding at the time of the crash, this crash would be 
determined to have been preventable. In these and all crashes, the 
Agency reserves the right to request additional information to 
substantiate the cause of the crash. Failure to submit a complete RDR 
with the required documentation would be cause for the RDR to be 
rejected.
    Again, the Agency seeks comments on what other documentation would 
be sufficient to make this determination.
    In addition, Section 5223 of the Fixing America's Surface 
Transportation, Pub. L. 114-94 (FAST) Act prohibits the Agency from 
making available to the general public information regarding crashes in 
which a determination is made that the motor carrier or the commercial 
motor vehicle driver is not at fault. Therefore, crashes determined to 
be not preventable will not be listed on the carrier's list of crashes 
on the public SMS Web site.

B. Reviewers

    For this demonstration program, FMCSA is proposing to use DataQs to 
direct these types of requests to a group of reviewers under the 
Agency's direct supervision. FMCSA has not yet determined whether this 
would be a dedicated group of FMCSA staff or if these reviews would be 
conducted by a third party under contract to FMCSA. These RDRs would 
not be directed to the States.

C. Preventability Decisions

    Upon receipt of a complete RDR, FMCSA staff or a contractor would 
review the submission using the preventability definition in 49 CFR 
part 385. The Agency proposes that the RDR would result in one of the 
following three decisions and actions:
    1. Not Preventable--In these cases, the crash is removed from SMS.
    2. Preventable--In these cases, the crash is not removed from SMS 
for purposes of calculating the Crash Indicator BASIC percentile. FMCSA 
is considering options for weighting these crashes and is looking at 
the impacts if the current severity weighting is used (based on crash 
severity) or if a higher weighting is used since a preventability 
decision has been made. When crashes are determined to be 
``Preventable,'' the crash is still listed on the Agency's Web sites 
with a note that reads, ``FMCSA reviewed this crash and determined that 
it was preventable.''

[[Page 45213]]

    3. Undecided--In these cases, the documentation submitted did not 
allow for a conclusive decision by reviewers. When crash reviews are 
undecided, the crash is not removed from SMS and the severity weighting 
is unchanged. The crash will still be listed on the Agency's Web sites 
with a note that reads, ``FMCSA reviewed this crash and could not make 
a preventability determination based on the evidence provided.''
    In keeping with the Agency's current preventability guidance, if a 
post-crash inspection determines that the motor carrier, vehicle, or 
driver was in violation of an out-of-service regulation at the time of 
the crash, the crash will be determined to have been ``Preventable.''

D. Review

    The public, including motor carriers and drivers, would be allowed 
to seek review of the RDR decision using the DataQs system and 
processes currently in place.

E. Quality Controls

    In order to ensure the quality and consistency of the reviews, 
FMCSA will build a quality control standard into either its contract or 
its internal procedures. For example, it is anticipated that a process 
will be established to require a certain percent of reviews to be 
checked by a different reviewer to confirm consistent decisions are 
made. When a different conclusion is reached by the second reviewer, a 
supervisor will be responsible for reviewing the case and rendering a 
decision.

F. Fraudulent Requests

    In accordance with the Agency's existing DataQs program, any 
intentionally false or misleading statement, representation, or 
document that is provided in support of an RDR may result in 
prosecution for a violation of Federal law punishable by a fine of not 
more than $10,000.00 or imprisonment for not more than 5 years, or both 
(18 U.S.C. 1001).

G. Agency Analysis

    Throughout this test period, FMCSA will maintain data so that at 
the conclusion of the test, the Agency can conduct analysis. It is 
expected that the Agency's analysis would include, but not be limited 
to, cost of operating the test, future crashes of carriers that 
submitted RDRs, future crash rates of motor carriers with preventable 
crashes, and impacts to SMS crash rates. The analysis will be used to 
examine ATA's assertion that crashes of these types are not the 
responsibility of the motor carrier, and inform future policy decisions 
on this issue.

H. Testing Period

    FMCSA proposes that the minimum time period for this crash 
preventability test would be 24 months.

    Issued under the authority delegated in 49 CFR 1.87 on: July 5, 
2016.
T.F. Scott Darling, III,
Acting Administrator.
[FR Doc. 2016-16426 Filed 7-11-16; 8:45 am]
 BILLING CODE 4910-EX-P