Making and Publishing Preventability Findings as Guidance without Due Process or Rulemaking – a Mistake of Epic Proportion

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Making and Publishing Preventability Findings as Guidance without Due Process or Rulemaking – a Mistake of Epic Proportion

Henry E. Seaton

Law Office of Seaton & Husk, LP

henryseaton@transportationlaw.net

info@transportationlaw.net

www.transportationlaw.net

FMCSA proposes expanded crash preventability determination program

Based on its two years’ experience with a demonstration program, the Federal Motor Carrier Safety Administration announced that has decided to operate a crash preventability demonstration program that would use a streamlined process and exclude from Safety Measurement System metrics those crashes found to be not preventable. In an August 5 Federal Register notice, FMCSA also said that it would tweak the existing list of reviewable crashes slightly and would begin reviewing additional crash types to determine whether they, too, are predominantly not preventable. Crashes through July 2019 would be reviewable under the demonstration program, which will continue through September. Also, crashes reviewed during the demonstration program would remain in the calculation of the SMS Crash Indicator BASIC.

FMCSA invited comments on the proposal by October 4. However, the published document is not a formal notice of proposed rulemaking (NPRM). In June, the Motor Carrier Regulatory Reform (MCRR) coalition of 10 trucking-related organizations submitted a petition to FMCSA for a rulemaking in the event it planned, as publicly announced, to change how it analyzes and publishes data on motor carrier crashes. A major problem with FMCSA’s approach is that the term “preventability” does not equate to carrier fault or a systemic violation of safety violations, the MCRR coalition argued. Although FMCSA plans to make changes in the allowable crash types and in the review process in October, the agency said proposed SMS changes would go into effect only after review of comments.

            

FMCSA is modifying the existing crash types under the demonstration program slightly. The most significant change is to expand “motorist under the influence” to “individual under the influence” to allow for non-preventable findings of crashes involving impaired pedestrians and bicyclists. The agency also plans to test eight additional crash types that frequently were submitted during the demonstration program but did not qualify under the terms of the program. In a couple of cases, FMCSA will test non-preventability determinations for crashes where another driver involved in the crash – but not the one striking the CMV – was under the influence or driving in the wrong direction. Other crash types FMCSA plans to test include those where the CMV is struck:

·      On the side in the rear;

·      By a vehicle that did not stop or slow in traffic;

·      By a vehicle that failed to stop at a traffic control device;

·      By a vehicle that was making a U-turn or illegal turn;

·      By a driver who experiences a medical issue that causes the crash;

·      By a driver who admits falling asleep or to distracted driving.

The agency said it planned to review the new crash types for 24 months, but it may cut that short if it gathers enough information to discontinue the type or make further changes.

FMCSA acknowledged that because SMS is a relative system, removing crashes from the Crash Indicator BASIC may increase the percentiles of other carriers, potentially resulting in a higher percentile for a carrier that had no additional crashes. The agency noted, however, that the Crash Indicator BASIC percentiles are not publicly available and can be accessed only by the motor carrier, FMCSA, and law enforcement users. “This change would not change any carrier’s safety fitness rating or ability to operate, not would it establish any obligations or impose legal requirements on any motor carrier.”

For the Federal Register notice, visit https://www.federalregister.gov/d/2019-16693.

COMMENT: Crash Preventability Determination Program

The Agency is attempting to avoid scrutiny of the program as required by rulemaking, the Administrative Procedures Act, the FAST Act, and administrative rulings. The preventability standard has not been vetted, the Agency has not provided for due process or judicial appeal or offered any justification for publishing preventability findings which the Agency itself cannot use or prove with any certainty affects carrier compliance. This is the most important issue because past experience has taught publication of roadside data using artificial standards and statistical flaws results in misuse by shippers, insurers and particularly plaintiff’s bar to the detriment of the vast majority of carriers who are unrated.

MCRR has filed the attached formal Petition for Rulemaking well in advance of the Agency’s notice which to date has been ignored. Now is the time for the Agency to withdraw its Notice and Request for Comments. This issue is too important to allow the Agency to summarily avoid making findings of fact and conclusions of law in the required rulemaking process or the safeguard against bureaucratic overreach. 

CALL TO ACTION

Your help and support is needed! Please email info@transportationlaw.net and request participation with MCRR members in responding to this issue. Please also visit  http://asectt.blogspot.com/ for important updates. Thank you!

Henry E. Seaton

Law Office of Seaton & Husk, LP

2240 Gallows Road

Vienna, VA 22182

Tel: 703-283-4251

henryseaton@transportationlaw.net

[VIEW  Petition for Rulemaking on Scope and Use of "Preventability" here http://asectt.blogspot.com/2019/08/petition-for-rulemaking-on-scope-and.html]