Spring 2021

How the FMCSA’s New Crash Preventability Program Affects Motor Carrier’s BASIC Status

Over the course of the last few years, the Federal Motor Carrier Safety Administration (“FMSCA”) has engaged in a Crash Preventability Determination Program (“the Program”).  It was developed and implemented by FMSCA at the behest of stakeholders in the motor carrier industry who desired changes to how FMSCA calculated the safety risk posed by motor carriers. That program has now been made permanent.

Historically, the FMSCA calculated and or expressed the risk posed by a particular motor carrier through its Safety Measurement System (“SMS”), which uses safety performance information in the Behavior Analysis and Safety Improvement Categories (“BASICs”) to identify motor carriers that, when compared to others, have a high crash frequency that requires federal monitoring and or safety intervention.  The Program allows motor carriers to petition FMSCA to review reported crashes for a non-preventability finding that, if accepted, would prevent that crash from inflating their BASIC risk rating.

Here is how it works.  Motor carriers may only submit certain types of crashes to FMSCA for a review under the Program.  This is what is known as a “Request for Data Review” (“RDRs”). A motor carrier’s RDR must involve a crash that occurred on or after August 1, 2019.  Moreover, only the following crash types should be submitted as an RDR: (1) struck in the rear; (2) wrong direction or illegal turns; (3) parked or legally stopped; (4) under the influence; (5) medical issues, falling asleep, or distracted driving; (6) cargo/equipment/debris or infrastructure failure; (7) animal strike; (8) suicide; and (9) rare or unusual.  An RDR will not be rejected simply because FMSCA views the crash as more properly suited to a different category than how the motor carrier identified it at the time of the RDR’s submission.  However, the FMSCA will close the RDR if it determines that no category is applicable or if the crash occurred before August 1, 2019.   All RDRs must be accompanied by the Police Accident Report (“PAR”) that was generated as a result of the crash.  If a PAR is not available for the crash, an RDR cannot be submitted.  Other evidence, such as photographs, video, or court documents, may be submitted with the RDR, but FMSCA does not require motor carriers to provide this additional information.

Upon receipt of an RDR, the FMSCA will make an eligibility determination.  If the RDR involves one of the nine categories listed above, then the FMSCA will proceed with its review, which will culminate with FMCSA assigning a “Not Preventable,” “Preventable,” or “Undecided” finding to the crash.  These findings have the following meanings:

Not Preventable:  If a driver, who exercises normal judgment and foresight, could not have foreseen the possibility of the accident that in fact occurred, and could not have avoided it by taking steps within his/her control.

Preventable:  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.  This includes when the driver or commercial motor vehicle was legally prohibited from operating at the time of the crash, including if the post-crash inspection report shows there was an out-of-service violation.

Undecided:  If the documentation submitted did not allow for a conclusive decision by reviewers.  This includes cases that are closed because the carrier did not provide additional information as requested.

The goal of the RDR is to obtain a “Non-Preventable” finding.  If the RDR is successful in that regard, then FMSCA will not use that RDR’s crash when calculating the carrier’s BASIC measure and percentile, which is a favorable result for motor carriers.  Consequently, it is this firm’s opinion that that motor carriers should submit RDRs for all eligible crashes.  A review of the data collected by FMSCA during its consideration of the Program bears this out.  For instance, FMSCA assigned a “Non-Preventable” finding for 94% of all RDRs submitted during the Program’s demonstration period between 2017 and 2019.  Consequently, even though FMSCA will continue to list all crashes on SMS, motor carriers have been able to correct their risk rating by submitting RDRs.

If, however, the RDR receives a “Preventable” finding, motor carriers can rest assured that this result will not be held against them in court should litigation ensue from the crash.  According to a Notice published in the Federal Register, “a crash preventability determination does not assign fault or legal liability for the crash.”  See Federal Register, Vol. 85, No. 88 (May 6, 2020).  Relatedly, federal law renders these determinations not admissible in a civil action for damages.  See 49 U.S.C. 504(f).

(f) No part of a report of an accident occurring in operations of a motor carrier, motor carrier of migrant workers, or motor private carrier and required by the Secretary, and no part of a report of an investigation of the accident made by the Secretary, may be admitted into evidence or used in a civil action for damages related to a matter mentioned in the report or investigation.

Thus, there appears to be little downside to submitting an RDR, this is particularly so since FMSCA further advises that an “Undecided” finding does not mean that the crash was preventable.

In conclusion, FMSCA has permanently adopted a program by which motor carriers may petition the government to review crashes that affect their risk assignment.  The Program has basic eligibility and documentation requirements that most crashes will meet, and its review process has a quick turnaround of sixty days.  It is, by all accounts, a favorable process for motor carriers that should be utilized to prevent misleadingly negative safety classifications.