The U.S. Department of Transportation (DOT) recently announced its intent to make the Federal Motor Carrier Safety Administration’s (FMCSA) “Crash Preventability Demonstration Program” permanent following the expiration of its two-year evaluation period on July 30, 2019. The decision was made following “positive feedback from industry stakeholders” according to remarks made by Transportation Secretary Elaine Chao during a speech on March 29, 2019.
Since the inception of the FMCSA’s Compliance, Safety, Accountability (CSA) program, there has been criticism of the fact that all reportable crashes, regardless of the carrier’s or driver’s role in the collision, are listed on motor carriers’ CSA profiles and used to calculate their Crash Indicator BASIC score. Many in the commercial trucking industry expressed concern that, without an indication of preventability, the listing of all crashes on the FMCSA’s Safety Management System public website paints an inaccurate, and potentially damaging, picture of the risk posed by a trucking company. The demonstration program, originally enacted in August 2017, responded to these concerns by providing an avenue for motor carriers to challenge the preventability of reportable crashes.
Through the demonstration program, a carrier that believes a crash was clearly non-preventable can submit a Request for Data Review (RDR) through the DataQ website, attaching documentation that establishes the crash could not have been avoided. The burden is on the submitter to show that the crash was not preventable.
Following FMCSA review of the submitted materials, the crash will be classified as preventable, not preventable, or undecided. Determinations of preventability are made using the standard set forth in 49 C.F.R. § 385, Appendix B: “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.”
If an accident is classified as having not been preventable, it will be noted as such in CSA, and the Crash Indicator BASIC scores will reflect two scores: one including all crashes, and one with the non-preventable crash excluded. Crashes determined to be preventable or undecided are also classified accordingly.
As it stands, only crashes that are plainly non-preventable are eligible for review under the demonstration program. While the DOT has indicated a desire to adopt the existing demonstration program as a permanent fixture, it remains to be seen whether the program will be expanded to include other types of crashes where preventability is not as easily determined. Currently, FMCSA review is limited to the most frequent types of unavoidable collisions, including:
- When the commercial motor vehicle (CMV) was struck by a motorist driving under the influence (or related offense);
- When the CMV was struck by a motorist driving the wrong direction;
- When the CMV was struck in the rear;
- When the CMV was struck while it was legally stopped or parked, including when the vehicle was unattended;
- When the CMV struck an individual committing, or attempting to commit, suicide by stepping or driving in front of the CMV;
- When the CMV sustained disabling damage after striking an animal in the roadway;
- When the crash was the result of an infrastructure failure, falling trees, rocks, or other debris; or
- When the CMV was struck by cargo or equipment from another vehicle.
Making timely and appropriate RDRs should be an important function of a motor carrier’s Risk Management department, particularly if litigation is anticipated as a result of a collision. In isolation, a determination by the FMCSA that a particular accident was not preventable can go a long way towards defending a civil suit against the carrier and/or driver. A broader implication is that the ability to request and receive preventability determinations will create a more balanced and fair Crash Indicator scoring process for all motor carriers and provide much-needed context to a carrier’s safety record.
Have questions about the implications of the Crash Preventability
Demonstration Program and how it affects your company?
Contact our Transportation Group
