VIDEO: Preventability Determinations without Rulemaking: Why Should the Trucking Industry Care?

SUMMARY VIDEO (12:00) on ASECTT YouTube channel

FULL VIDEO (1:14:08)  on ASECTT Vimeo channel

Preventability Determinations without Rulemaking: Why Should the Trucking Industry Care?

Presented by: Mark Andrews, Henry Seaton, and Rick Gobbell
On behalf of the Motor Carrier Regulatory Reform Coalition 
9/6/2019  https://vimeo.com/asectt/preventability

0:00 Introductions
4:44 David Gee Message
12:52 Discussion Topics
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CALL TO ACTION
1:01:55 What is next?
• We must hold the Agency accountable for submitting this issue for rulemaking.
• Petition for Rulemaking filed June 14, 2019 by MCRR representing over 10,000 regulated carriers. (See asectt.blogspot.com and follow the link to “Preventability.”)
• In letter dated August 21 and received August 29, 2019 the FMCSA denied Petition for Rulemaking, merely shunting it over to the “guidance” docket on “Preventability.” See regulations.gov/document?D=FMCSA-2014-0177-0147.
• Request to General Counsel.
• Extension and FOIA request will be filed.
• Must file judicial appeal by October 20 if August 21 letter is final order. 
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 DISCUSSION TOPICS
13:24 What are Preventability Determinations?
• FMCSA’s proposal to adopt a program to examine certain categories of crashes upon request by using an unvetted, undefined “preventability” standard.
• Preventability is an artificial construct of the Agency’s choosing and would apply only to limited categories of crashes (8 categories were used in the test study but the Agency plans to expand without analysis).
• Crashes determined to be nonpreventable would be removed from the list of recordable accidents.
• Based upon the test study, 5,247 crashes would be removed leaving about 125,000 crashes annually as recordable and “presumed preventable.”
• 6,632 additional RDRs were submitted and rejected either as “preventable” or as not falling within an “eligible” crash category, thus of 12,247 submitted only 43% were granted.
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16:18 Where would this appear and for what purpose?
ANSWER:
• Crash information published by Agency on website / purpose not identified.
• Data used in SMS scores not published as per FAST Act but available to public from third parties.
• Preventability finding is not for Agency’s own use!
• But clearly intended as an alternative vetting criteria for use by shippers, brokers, insurers and plaintiff’s bar.
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44:22 Typical Agency rejection of RDR submission:
“The Crash Preventability Demonstration Program Request for Data Review (RDR) that you submitted is ineligible for participation in the program because there is no evidence the other driver was operating under the influence of drugs or alcohol.”
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46:49 How does this tie into CSA 2010 and the FAST Act?
After the decade old CSA 2010 run-up and implementation as guidance, Congress added the following additional perquisites to use of CSA which have not been addressed in the Notice and Request for Comment.
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48:45 If there are all these issues with the preventability program, how does the Agency propose to adopt this program with these unanswered challenges?
Answer: By bypassing rulemaking and issuing a 60 day “Notice and Request for Comment” and then ignoring the principal issues and administrative law requirements and adopting the program as “Guidance”
See “Crash Preventability Determination Program” Docket No. FMCSA–2014–0177 (regulations.gov)
Comments due October 4, 2019
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50:32 Take Note
• Making new policy by “Guidance” is the procedural tool for bureaucratic overreach.
• The preventability program bears all the hallmarks of being a “rule,” not mere guidance.
• Administrative Procedure Act (APA) – section 551(4) defines a rule as “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy (emphasis added).”
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1:08:38 Conclusion
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1:09:49 • APA issues aside, the program also would modify CSA accident scoring in a way that requires – but has not received – detailed scrutiny under section 5221 of the FAST Act (Pub.L. 114-94). Going forward, the program would “remove crashes with not preventable determinations from the SMS Crash Indicator BASIC calculation” (84 Fed.Reg. at 38090). As noted above, however, only a small minority of reportable crashes would benefit from the program, whether defined as in the past or under the guidelines going forward.