BEFORE THE DEPARTMENT OF TRANSPORTATION FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION

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1 BEFORE THE DEPARTMENT OF TRANSPORTATION FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION COMMENTS OF THE NATIONAL MOTOR FREIGHT TRAFFIC ASSOCIATION, INC. IN RESPONSE TO NOTICE AND REQUEST FOR PUBLIC COMMENTS DOCKET NO. FMCSA CRASH PREVENTABILITY PROGRAM PAUL G. LEVINE CLAIRE SHAPIRO Executive Director Eisen & Shapiro National Motor Freight Woodhill Rd. Traffic Association, Inc. Bethesda, MD North Fairfax Street, Suite Alexandria, VA Counsel for National Motor Freight Traffic Association, Inc. September 12, 2016

2 INTRODUCTION The National Motor Freight Traffic Association, Inc. ( NMFTA ) submits these comments in response to the July 12, 2016 Notice and Request for Public Comments, published by the Federal Motor Carrier Safety Administration ( FMCSA or Agency ) at 81 Fed. Reg ( Notice ), seeking comments on its proposed demonstration program developed to test whether the Agency can conduct preventability determinations on certain types of crashes and remove from a carrier s Crash Indicator BASIC those crashes found to be not preventable. NMFTA is a trade association, located at 1001 North Fairfax Street, Suite 600, Alexandria, VA 22314, whose member motor carriers transport the vast majority of less-than-truckload shipments moving throughout the United States and Canada. Those carriers are subject to FMCSA s safety jurisdiction and regulations, including the CSA SMS program, which contains carriers BASIC scores. Accordingly, they will be directly affected by FMCSA s decision regarding the removal of crashes from the Crash Indicator BASIC. Earlier in this proceeding, FMCSA sought comments from the public on the feasibility of considering a motor carrier s role in crashes in assessing the company s safety disposition. 80 Fed. Reg (Jan. 23, 2015). The Agency specifically sought comments on whether determinations of fault in Police Accident Reports (PARs) provide sufficient, consistent, and reliable information to support crash weighting determinations; whether a crash weighting process including fault would offer a stronger predictor of crash risk than overall crash involvement; and how FMCSA might manage a process for making such crash weighting determinations, including acceptance of public input. Id. at 3721; 81 Fed. Reg. at 45210, (describing prior notice and request for comments). The proposed demonstration program is FMCSA s response to the public comments received during that earlier stage of the proceeding. In prior comments submitted in this proceeding, NMFTA advised the Agency of its firm belief that findings as to fault derived from PARs should, whenever available, be incorporated into the computation of the Crash Indicator BASIC to ensure that this score presents a carrier s conduct in the fairest and most meaningful manner. See NMFTA Comments on Crash Weighting Analysis, Docket No. FMCSA (March 24, 2015); see also NMFTA Comments on Improvements to the CSA SMS, Docket No. FMCSA (July 2, 2012). Accordingly, NMFTA does not believe that the demonstration program should be limited to the few narrow categories of crashes that FMCSA currently proposes. To the contrary, the program should also allow preventability determinations supporting removal of a crash from the BASIC to be made when the relevant PAR makes a finding in the driver s favor with respect to fault, whether this is evidenced by a finding as to the critical reason for the crash or by issuance of a citation to the other motorist. PARs are a reliable source of information prepared by well-trained law enforcement officers. Neither the fact that coding used in PARs may vary a bit from state to state nor that a determination of fault may not always be made should prevent the consideration of fault in those cases where a clear determination is made. 1

3 DISCUSSION Since the inception of the SMS in 2010, the Crash Indicator BASIC has been broadly criticized by industry stakeholders for including all recordable crashes regardless of the fault of the involved motor carrier and its driver. Such an approach sometimes leads to a Crash Indicator percentile score that conveys an inaccurate picture of a carrier s safety disposition that ultimately results in carriers with exemplary safety management programs being prioritized for safety intervention by FMCSA. This is both unfair to the affected carriers and an inefficient use of the FMCSA s limited resources. FMCSA would get a fairer picture of a carrier s safety profile and better direct its resources to higher-risk carriers if crashes where a carrier and its driver are not at fault are excluded from the Crash Indicator BASIC. Although FMCSA has implicitly acknowledged the problem with the computation of the Crash Indicator BASIC by deciding not to post the percentile score on the public SMS website, the website nevertheless provides data on all recordable crashes without reference to or consideration of fault. The Agency has also consistently opposed consideration of fault. The reason most commonly given for this position is the claim that being in crashes, whether or not at fault, is a strong indicator of future crash risk. 81 Fed. Reg. at 45210; 80 Fed. Reg. at In the past, the Agency has also mentioned the potential cost and difficulty of evaluating fault as a deterrent to its consideration. 80 Fed. Reg. at Neither rationale, when viewed in context, is sufficient to justify total exclusion of fault. I. A Consideration of Fault Would Result in Better Use of FMCSA s Limited Resources. As noted above, FMCSA s resistance to the consideration of fault in its safety determinations has always been premised primarily upon its claim that any involvement in crashes, regardless of the carrier s role, increases the likelihood of future crashes and therefore the need for safety intervention. But that is simply wrong. It should be obvious that a carrier whose drivers repeatedly cause recordable accidents is more likely to have a poor safety disposition that could benefit from Agency intervention than a carrier whose well-trained drivers are victims of crashes caused by other motorists or by external conditions. Second, FMCSA overstates its own study and ignores others when claiming objective support for its position. FMCSA itself has conceded that a better correlation with crash risk results when fault is examined in connection with crashes involving fatalities. 80 Fed. Reg. at Moreover, a recent GAO study found that even when non-fatal crashes are considered, the demonstrated correlation between high SMS scores and increased likelihood of future crashes is unclear due to inadequate data. Federal Motor Carrier Safety: Modifying the Compliance, Safety, Accountability Program Would Improve The Ability to Identify High Risk Carriers, GAO , at 15-16, (Feb. 2014). Specifically, to compensate for the lack of data, the studies relied upon by FMCSA used aggregate numbers based upon industry averages. 2

4 Id. However, GAO and others have found that such aggregated groups of violations are not a reliable predictor of future crashes for many individual carriers. Id. Finally, the failure to consider fault ignores the fact that a comparatively higher historic or future crash level may be due to factors independent of the safety training and driving habits of the involved drivers. For example, carriers operating in an urban environment, a geographic area that is more conducive to crashes, often have higher crash ratings than those operating in more rural areas. Likewise, carriers operating in geographic areas with lots of construction, generally poor weather, or other conditions conducive to a higher number of crashes, will usually have higher crash ratings than those operating in more rural areas. Such external contributing conditions cannot be eliminated no matter what intervention is offered to carriers by the FMCSA. Thus, it is illogical in such cases to use such crashes to make safety intervention determinations. For all the reasons discussed above, the Crash Indicator BASIC should reflect a carrier and its drivers role in crashes, a task that can be done by using information derived from PARs. II. Consideration of Fault in PARs is Not too Costly or Time Consuming Under the DataQs RDR Process. Earlier in this proceeding, FMCSA argued that determining fault is not feasible because the time and cost to collect and review data might be excessive. 80 Fed. Reg. at However, this conclusion was premised upon a procedure that required the Agency to acquire and analyze all PARs for fault, then request public comment on each decision, and finally input the information into the SMS system. Id. The proposed demonstration program largely eliminates those perceived problems by requiring the involved carrier or driver to initiate the review process for a particular crash through a request for data review ( RDR ) submitted through the DataQs system. 81 Fed. Reg. at The carrier or driver seeking a correction must gather all relevant documents and prepare a written explanation in support of the request for a not preventable determination, which is then submitted for Agency review. The Agency need only review what has been submitted and make a decision in those limited number of cases. Thus, the primary burden of collecting accurate, relevant data and justifying the removal from the Crash Indicator BASIC has been shifted to carriers and drivers. The Agency need only take action and make a determination of fault when specifically asked to do so. Nevertheless, FMCSA has limited the demonstration program to crashes involving the following actions by the other motorist driving under the influence, driving in the wrong direction, striking the CMV in the rear, or striking the CMV while legally stopped as well as situations involving suicide, and vehicles incapacitated by animals or infrastructure failure. 81 Fed. Reg. at In addition, in the first four fact patterns, FMCSA requires a carrier to provide evidence of a conviction to establish that the crash was not preventable and should be 3

5 removed from the BASIC. Id. PARs, insurance reports, and other clearly relevant documents are not sufficient by themselves in these circumstances to establish preventability. Id. Given the reduced time and cost burden placed on the Agency by the proposed procedure, there is no legitimate reason to limit the demonstration program to these certain types of preventable crashes that generally are less complex as currently proposed. The consideration of other types of crashes is no more complex if FMCSA simply accepts the findings of causation and fault made in the PAR, which the Agency has previously found could reliably be done in nearly 90 percent of PARs. See 80 Fed. Reg. at Indeed, the demonstration program is the opportune time to see whether such an analysis is feasible. III. The Demonstration Program is too Limited in Scope. Importantly, to the extent that the demonstration program considers removal of multiparty crashes for removal from the Crash Indicator BASIC, it is limited to crashes where another party has been convicted of an offense in connection with a recordable crash. 81 Fed. Reg. at However, responsibility for a crash is frequently resolved without any legal proceeding. Indeed, the issuance of a citation or simply the finding of a law enforcement officer in a PAR that the other driver was at fault is often more than enough to resolve the matter for liability purposes. Neither insurance companies nor the courts processing personal injury or property damage claims require a conviction to support determinations of liability in connection with those claims. There is no logical reason for FMCSA to require a conviction here. The Agency should not be looking for an absolute determination of legal responsibility for a crash before it can be removed from the Crash Indicator BASIC. Rather, it should be trying to determine, based upon a consideration of all available evidence relevant to a crash, whether it is indicative of a poor safety disposition. Moreover, while stakeholders have focused on fault, the demonstration program employs a preventability standard, seemingly treating the two as equivalents. See generally 81 Fed. Reg. at As defined, a preventable accident is one involving a CMV, that could have been averted but for an act, or failure to act, by the motor carrier or the driver. 49 C.F.R A carrier might be found to be free of fault even though extraordinary steps can be envisioned that could have averted the crash, but they are not necessarily steps that a welltrained truck driver exercising reasonable care would have been expected to take in a particular case. Examples of situations that might fall within this category include the other party speeding excessively, running a red light, making an extreme lane incursion, or the like. A preventability test can impose an unreasonably strict standard of care in such cases, even though a carrier is not at fault. Accordingly, the carrier should not be held responsible for purposes of the Crash Indicator BASIC if the driver exercised reasonable care but nevertheless was involved in a crash caused by another party. Because of the FMCSA s focus on strict preventability, the fact that the other party to a recordable crash was found by law enforcement officers completing a PAR to be responsible 4

6 (i.e., at fault) for a crash effectively a finding that that the carrier was not at fault -- may not be used in the demonstration program as a basis for challenging inclusion of the crash in the Crash Indicator BASIC. FMCSA says such a broad standard for exclusion that the other party was found responsible by law enforcement for the crash -- is not workable because PARs do not generally provide a clear determination as to the preventability of a crash. 81 Fed. Reg. at The fact that PARs may not commonly address preventability does not mean they should always be disregarded. First, as discussed above, the focus here should be a finding of fault not preventability. Second, to the extent that PARs contain some inconsistencies in coding of crashes, which results in some reports not including a clear finding of fault, the solution is for FMCSA to work with the states to develop a model PAR form that would be used by all states; it is not to disregard PARs in their entirety. 1 There is simply no reason why any lack of uniformity should prevent consideration in the 91 percent of cases where a clear determination as to fault can be identified. 2 PARs are the first-hand reports prepared by well-trained law enforcement officers who observe the crash scene and talk with involved parties and witnesses. PARs are a reliable source of crash information given the training received by the officers who prepare those documents. Entry-level training for the law enforcement officers who prepare the PARs includes measuring and mapping crash scenes, assessing roadway evidence and vehicle damage, and collecting relevant information from those present at the scene. They study the basics of accident report writing, taking measurements, diagramming accidents, distinguishing primary from other collision factors, recognizing and analyzing different types of physical evidence at the scene, understanding tire and skid marks. See, e.g., at LD 29 (training for California state officers). This knowledge is reinforced through analysis of simulated traffic collisions and field work with experienced officers. See id. Learning to make determinations of fault is an integral part of the training process. In most cases, it is officers who go on to take more advanced training courses and Highway Patrol Officers who receive extensive training in crash investigation and reporting that are called to the scene of fatal accidents as well as other serious accidents to ensure a complete, thorough, and accurate analysis and report. 1 Although PARs vary superficially in form from state to state, the difference is not so great as FMCSA suggests. All PARs typically require the investigating officer to identify by code numbers the circumstances, factors, or causes contributing to the crash and to write a narrative description of the crash. See (contains links to state traffic crash report forms and overlay code sheets). A number of state reports expressly request a finding as to causation. 2 At the very least, clear findings of fault in PARs involving crashes that fall into the categories FMCSA has proposed for inclusion in the demonstration program should be a sufficient substitute for a conviction in an RDR. 5

7 IV. The Demonstration Program Should Not be a Tool to Penalize a Carrier/Driver Who Challenges Inclusion of a Crash. A couple features of the demonstration program could inadvertently transform the RDR process from a tool meant to improve the quality and accuracy of the data in FMCSA s records into an Agency tool for penalizing a carrier who tries to use the DataQs RDR process to rectify a perceived error in the data. 3 The first is FMCSA s suggestion that a crash be given a higher weighting and that the preventability finding should be noted on the SMS website if a crash was found to be preventable as a result of an RDR. 81 Fed. Reg. at The second is the Agency s suggestion that the public be allowed to seek review of the RDR decision using the DataQs system. Id. at The first unfairly penalizes a carrier simply because of FMCSA s difference of opinion on the accuracy of the crash information; the second unfairly does the same because a third party is able after-the-fact to successfully challenge FMCSA s initial RDR decision. Extra weighting for crashes found to be preventable. FMCSA currently weighs crashes based upon severity, giving the greatest weight to fatal crashes, and giving greater weight to all crashes involving personal injury than to crashes involving towed vehicles. In the current proceeding, the Agency is now looking into increasing a weighting further if a crash is found through the RDR process to have been preventable. 81 Fed. Reg. at In other words, FMCSA would increase a carrier s Crash Indicator BASIC percentile score if it submits an RDR for a crash believed to be improperly reported, because the Agency ultimately reaches a different conclusion. Although the severity of the underlying crash is no different than it was when first listed, it would be given more weight simply because it underwent another layer of review. That turns a process created to give stakeholders a venue for correcting their records into a tool that potentially punishes them for attempting to do so. A carrier or its driver should not be punished for exercising their legal right to use the RDR process to correct inaccurate information, except perhaps in the rare situation when a claim was totally frivolous. Indeed, the possibility that an RDR might result in worse treatment of the crash would deter use of the review process and the overall quality of FMCSA s data would suffer. Public participation in the RDR process. NMFTA does not see any benefit the Agency if self-interested members of the public are allowed for personal reasons to intervene in this internal and objective RDR decision-making process. Beyond the improper injection of emotion into the crash review process, allowing the public to challenge RDR decisions after-the-fact would render them all tentative and extend the decision making process indefinitely. FMCSA should be guided by its own objective analysis of crashes, not by the contrary arguments offered by third parties, in making its safety intervention decisions. 3 FMCSA explains the effect of the DataQ RDR process on data quality as follows: By using DataQs, you are helping to improve the quality of data used by FMCSA. See 6

8 The proposed process effectively allows a member of the public to challenge a carrier or driver record in an ex parte manner. There is no indication that the involved carrier or driver would even be notified of any challenge by a member of the public to the RDR decision. Thus, while NMFTA does not think the public should be allowed to intervene in the RDR process, if FMCSA decides otherwise, then fundamental fairness requires that the carrier be notified and allowed to file a written defense of the Agency s prior decision. CONCLUSION NMFTA believes that the proposed demonstration program is a step in the right direction, insofar as it explicitly allows the removal of certain crashes not caused by carriers and their driver to be removed from the Crash Indicator BASIC. However, for all the reasons discussed above, the program should be expanded to include all crashes where the available evidence, including the relevant PARs, shows that the carrier did not cause the crash. Respectfully submitted, PAUL G. LEVINE CLAIRE SHAPIRO Executive Director Eisen and Shapiro National Motor Freight Woodhill Rd. Traffic Association, Inc. Bethesda, MD North Fairfax Street, Suite 600 Alexandria, VA Counsel for National Motor Freight Traffic Association, Inc. 7

Crash Preventability Program Informational Webinar. Steven Bryan Founder, CEO Vigillo LLC

Crash Preventability Program Informational Webinar Steven Bryan Founder, CEO Vigillo LLC s.bryan@vigillo.com Crash Preventability Program Informational Webinar DEPARTMENT OF TRANSPORTATION Federal Motor