
[Federal Register Volume 81, Number 133 (Tuesday, July 12, 2016)]
[Notices]
[Pages 45206-45210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16427]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2014-0177]


Crash Weighting Analysis

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice; response to public comments.

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SUMMARY: On January 23, 2015, FMCSA announced the results of the 
Agency's study on the feasibility of using a motor carrier's role in 
crashes in the assessment of the company's safety. This study assessed 
(1) whether Police Accident Reports (PARs) provide sufficient, 
consistent, and reliable information to support crash weighting 
determinations; (2) whether a crash weighting determination process 
would offer an even stronger predictor of crash risk than overall crash 
involvement and how crash weighting would be implemented in the 
Agency's Safety Measurement System (SMS); and (3) how FMCSA might 
manage a process for making crash weighting determinations, including 
the acceptance of public input.
    Based on the feedback received in response to the January 23, 2015, 
Federal Register notice, FMCSA conducted additional analysis to improve 
the effectiveness of the Crash Indicator Behavior Analysis and Safety 
Improvement Category (BASIC). In addition, the Agency will develop and 
implement a demonstration program to determine the efficacy of a 
program to conduct preventability determinations on certain types of 
crashes that generally are less complex.

ADDRESSES: Docket: For access to the docket to read background 
documents or comments, go to www.regulations.gov at any time or visit 
Room W12-140 on the ground level of the West Building, 1200 New Jersey 
Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., ET, Monday 
through Friday, except Federal holidays. The on-line Federal document 
management system is available 24 hours each day, 365 days each year. 
If you want acknowledgment that we received your comments, please 
include a self-addressed, stamped envelope or postcard or print the 
acknowledgement page that appears after submitting comments on-line.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: For information contact Mr. Catterson 
Oh, Compliance Division, Federal Motor Carrier Safety Administration, 
1200 New Jersey Avenue SE., Washington, DC 20590, Telephone 202-366-
2247 or by email: Catterson.Oh@dot.gov. If you have questions on 
viewing or submitting material to the docket, contact Docket 
Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Compliance, Safety, Accountability (CSA) program is FMCSA's 
enforcement model that allows the Agency and its State partners to 
identify and address motor carrier safety problems before crashes 
occur. The Agency's SMS quantifies the on-road safety performance of 
motor carriers to prioritize enforcement resources. FMCSA first 
announced the implementation of the SMS in the Federal Register on 
April 9, 2010 (75 FR 18256) (Docket No. FMCSA-2004-18898). Violations 
are sorted into BASICs, which include a Crash Indicator BASIC.
    Since its implementation in 2010, the SMS has used recordable crash 
records involving commercial motor vehicles (CMVs) that are submitted 
by the States through the Agency's Motor Carrier Management Information 
System, in addition to compliance and safety performance in other 
BASICs, to prioritize carriers for safety interventions. The Agency 
uses the definition of ``accident'' in 49 CFR 390.5, which means an 
occurrence involving a CMV operating on a highway in interstate or 
intrastate commerce that results in: (i) A fatality; (ii) bodily injury 
to a person who, as a result of the injury, immediately receives 
medical treatment away from the scene of the accident; or (iii) one or 
more motor vehicles incurring disabling damage as a result of the 
accident,

[[Page 45207]]

requiring the motor vehicle(s) to be transported away from the scene by 
a tow truck or other motor vehicle. The term accident does not include 
an occurrence involving only boarding and alighting from a stationary 
motor vehicle; or an occurrence involving only the loading or unloading 
of cargo.
    The crash data reported to FMCSA by the States does not specify a 
motor carrier's role in the crash or whether the crash was preventable. 
The Crash Indicator BASIC weights crashes based on crash severity, with 
more weight given to fatality and injury crashes than those that 
resulted in a vehicle being towed from the scene with no injuries or 
fatalities. While the public SMS Web site provides information on the 
recordable crashes of motor carriers, the percentile created by the 
system is not and has never been publicly available. The Crash 
Indicator BASIC percentiles are available only to motor carriers who 
log in to view their own data, as well as to Agency and law enforcement 
users.
    In addition, Section 5223 of the Fixing America's Surface 
Transportation, Pubic Law 114-94 (FAST) Act prohibits the Agency from 
making available to the general public information regarding crashes in 
which a determination is made that the motor carrier or the commercial 
motor vehicle driver is not at fault.
    Research on the issue of crash preventability conducted by FMCSA, 
as well as independent organizations, has demonstrated that crash 
involvement, regardless of role in the crash, is a strong indicator of 
future crash risk. FMCSA's recently completed SMS Effectiveness Test 
shows that, as a group, motor carriers with high percentiles in the 
Crash Indicator BASIC have crash rates that are 85 percent higher than 
the national average. (https://csa.fmcsa.dot.gov/Documents/CSMS_Effectiveness_Test_Final_Report.pdf). This document and related 
reports are available in the docket of this notice.
    Stakeholders have expressed concern that the Crash Indicator BASIC 
may not identify the highest risk motor carriers for intervention 
because it includes all crashes without regard to the preventability of 
the crash. In addition, some industry representatives have advised that 
while the Crash Indicator BASIC percentile is not publicly available, 
some customers are requiring motor carriers to disclose this 
information before committing to a contract.
    In an attempt to identify a methodology and process for conducting 
preventability reviews, FMCSA completed a study on the feasibility of 
using a motor carrier's role in crashes as an indicator of future crash 
risk. The analysis focused only on the three broad questions below 
addressing the procedural issues surrounding a crash weighting program 
and the feasibility of implementing such a program; it did not focus on 
any other implications of the program. The three questions were 
separately designed and analyzed to inform Agency decisions.
    1. Do PARs provide sufficient, consistent, and reliable information 
to support crash weighting determinations?
    2. Would a crash weighting determination process offer an even 
stronger predictor of crash risk than overall crash involvement, and 
how would crash weighting be implemented in the SMS?
    3. Depending upon the analysis results for the questions above, how 
might FMCSA manage the process for making crash weighting 
determinations, including public input to the process?
    The Agency's research plan was posted on the Agency's Web site on 
July 23, 2012, at http://csa.fmcsa.dot.gov/documents/CrashWeightingResearchPlan_7-2012.pdf. The resulting report is titled 
``Crash Weighting Analysis'' and is in the docket associated with this 
notice. The draft research was peer reviewed, and the peer review 
recommendations are also in the docket.

II. Summary of Comments

    FMCSA received 54 docket submissions in response to the January 23, 
2015 (80 FR 3719) notice. The commenters represented motor carriers, 
drivers, industry associations, safety advocates, and State enforcement 
partners. The comments focused on: (1) The impacts of the SMS 
information, (2) methodology changes needed in SMS, and (3) the 
preventability determination process.

A. Impacts of SMS Information

    There was a majority opinion from the commenters that the 
establishment and use of a Crash Indicator BASIC percentile without 
consideration of crash preventability has been detrimental to motor 
carriers. Even though this percentile is not publicly available--it is 
only available to the Agency, law enforcement, and motor carriers who 
log into the FMCSA's Portal to view their own data--commenters 
expressed concern that the percentile is inaccurate, unfair, and 
negatively impacts their businesses. Even though the Crash Indicator 
BASIC percentiles are not publicly available, the American Moving and 
Storage Association (AMSA) and the Minnesota Trucking Association (MTA) 
advised that shippers are requiring motor carriers to show their 
percentiles before contracting with them. Industry representatives 
indicated that the percentiles are inaccurate because non-preventable 
crashes are included and, therefore, the percentiles portray motor 
carriers as unsafe even when their drivers or vehicles did not cause a 
crash.
    Safety advocates, including Road Safe America, Truck Safety 
Coalition, and Advocates for Highway and Auto Safety (Advocates), 
supported keeping all crashes in the SMS system. These groups advised 
that using all crashes best predicts future crash risk and that the 
public should have access to all of the crash data.
    FMCSA Response: As FMCSA has indicated previously, the SMS is a 
prioritization tool for the Agency and its law enforcement partners. 
The Agency's Crash Indicator BASIC percentiles have never been in the 
public view because FMCSA recognized the Crash Indicator BASIC did not 
factor in preventability.
    As discussed in this notice, as well as a separate notice published 
today in the Federal Register, FMCSA is proposing a demonstration 
program in which certain types of non-preventable crashes would be 
removed from the SMS.
    FMCSA's SMS Effectiveness Test, discussed above, supports the 
Agency's continued use of the Crash Indicator BASIC for its own 
resource prioritization during the analysis period. The Agency notes 
that crashes will not affect a motor carrier's safety rating unless the 
carrier's role in the crashes is considered first.

B. Methodology Changes

Crash Definition
    Tim Watson recommended that the Agency change the recordable crash 
definition to eliminate tow-aways. Mr. Watson contended that the 
Agency's focus should be on fatal and injury crashes and that, often, 
the damage requiring a tow is not severe. It is his opinion that 
focusing on the fatal and injury crashes would be more manageable and 
cost-effective for FMCSA.
    FMCSA Response: Revising the definition of recordable crash would 
be a change to the regulatory text that is beyond the scope of this 
notice. However, FMCSA conducted additional analysis to determine how 
removing tow-away crashes from the Crash Indicator BASIC would impact 
its effectiveness in identifying high risk

[[Page 45208]]

carriers. A report including this analysis titled ``Crash Indicator 
BASIC Scenario Analysis'' has been added to this docket. This report 
suggests that removing tow-away crashes from the Crash Indicator BASIC 
would not improve the effectiveness of this BASIC and would 
significantly reduce the Agency's ability to identify and intervene 
with high-risk carriers. Removing tow-away crashes would result in a 
lower overall crash rate (5.99 crashes per 100 power units [PUs]) than 
the current Crash Indicator BASIC (6.34 crashes per 100 PUs), which 
suggests that it is not as effective at identifying high crash risk 
carriers. The number of crashes for this scenario is much lower than 
the number of crashes for the current Crash Indicator BASIC (10,854 vs. 
15,638 crashes). Changes in size demographics show that under this 
scenario the smallest group of carriers, those with 1-5 power units, 
totals 286 compared to 1,379 carriers over Intervention Threshold in 
the current Crash Indicator BASIC. This is a 79 percent reduction in 
the number of carriers over the Intervention Threshold. Therefore, the 
Agency would have fewer opportunities to intervene through warning 
letters or other contact to potentially reduce crashes.
Weighting of Fatal and Injury Crashes
    The American Bus Association (ABA) and National School 
Transportation Association (NSTA) presented a different perspective. 
These groups contended that the extra weighting of fatal and injury 
crashes has greater, and inappropriate, impacts on the passenger 
carrier sectors of the industry. Because of the volume of passengers, 
there is rarely a crash involving a bus that does not result in at 
least one injury. As a result, extra weighting on these crashes would 
automatically raise the Crash Indicator BASIC percentiles for passenger 
carriers.
    FMCSA Response: FMCSA completed additional analysis in the Crash 
Indicator BASIC Scenario Analysis on the impacts of removing or 
altering the weighting for fatal and injury crashes for all motor 
carriers. The result of this change would be an overall crash rate 
(6.13 crashes per 100 power units) for the group of carriers over the 
intervention threshold that is lower than the crash rate for the group 
of carriers over the intervention threshold in the current Crash 
Indicator BASIC (6.34 crashes per 100 power units), which suggests that 
it is not as effective at identifying high crash risk carriers.
Separate Safety Event Groups for Passenger and Property Carriers
    The passenger carrier industry also suggested that FMCSA should 
establish separate safety event groups for passenger and property 
carriers. The ABA, NSTA, and FirstGroup America indicated that this 
change would result in a more balanced comparison of crashes.
    FMCSA Response: FMCSA previously considered this suggestion in the 
development of SMS and determined that it was not a viable option 
because the population of passenger carriers is too small and the range 
of company sizes, based on power units, is too great to establish 
reasonable safety event groups. Grouping this small population 
separately would result in artificially high percentiles for some 
carriers. However, as part of the correlation study required by Section 
5221 of the FAST Act, this issue will be studied further by the 
National Academy of Sciences and any recommendations will be addressed 
upon completion of that study.
Normalize Based on Vehicle Miles Traveled (VMT)
    ABA and NSTA recommended that FMCSA normalize the number of crashes 
using VMT to adjust the percentiles for the exposure of large carriers. 
It was presented that such a change would distinguish between carriers 
in high traffic areas and those that are not. These commenters believed 
that this change in the method of calculation would result in more 
accurate percentiles for large carriers.
    FMCSA Response:
    FMCSA notes that VMT is already factored into the calculation of 
the Crash Indicator BASIC percentile. Currently, to normalize the Crash 
Indicator calculation, the Crash Indicator BASIC measure is calculated 
by dividing the sum of the time/severity weight for all applicable 
crashes by the Average Power Units (PU) multiplied by the Utilization 
Factor. The Utilization Factor is based on industry segment 
(combination or straight) and VMT, as noted in the following tables.

[[Page 45209]]

[GRAPHIC] [TIFF OMITTED] TN12JY16.000

As a result, FMCSA is not considering any additional changes to how VMT 
is used with in the Crash Indicator. However, on June 29, 2015, the 
Agency published a Federal Register Notice titled, ``Future 
Enhancements to the Safety Measurement System (SMS),'' in which the 
Agency proposed increasing the maximum VMT used in the Utilization 
Factor to more accurately reflect the operations of high-utilization 
carriers. This proposed change would not impact the methodology 
described above. A preview of this proposed change, will be announced 
in a future Federal Register notice.
    Additionally, FMCSA aligned its VMT data requirements with the 
Unified Registration System (URS). Previously, the SMS only used VMT 
data from a carrier's registration form when the VMT-associated 
calendar year was within 24 months of the current year. This 
improvement enables the SMS to use a carrier's VMT data regardless of 
VMT-associated calendar year.

C. Minimum Number of Crashes

    While not submitted as a comment, the Agency also considered 
increasing the minimum number of crashes required in a 24 month period 
from two to three, or five, like the other SMS BASICs, before the 
crashes will be included in the SMS calculation.
    As analyzed in the Crash Indicator BASIC Scenario Analysis, the 
overall crash rate for the group of carriers over the intervention 
threshold using a minimum of three crashes is about the same as the 
crash rate for the group of carriers over the intervention threshold in 
the current Crash Indicator BASIC (6.33 vs. 6.34 crashes per 100 Power 
units). This suggests that using a minimum of three crashes would 
continue to identify a group of carriers with high crash rates. 
However, this change in data sufficiency provides the Agency with a 
high level of confidence. The number of crashes covered under this 
scenario is only slightly lower than the number of crashes for the 
current Crash Indicator BASIC (14,838 vs. 15,638 crashes).
    However, when the minimum number of crashes is raised to five, the 
overall crash rate for the group of carriers over the intervention 
threshold is lower than the crash rate for the group of carriers over 
the intervention threshold in the current Crash Indicator BASIC (6.23 
vs. 6.34 crashes per 100 PUs), which suggests that raising the minimum 
number of crashes to five would reduce the effectiveness of the Crash 
Indicator BASIC in identifying high crash risk carriers. The number of 
crashes covered under this scenario is lower than the number of crashes 
for the current Crash Indicator BASIC (13,337 vs. 15,638 crashes).
    Based on this additional analysis, FMCSA is proposing to change the 
minimum number of crashes from two to three before a percentile is 
calculated in the Crash Indicator BASIC. This change is being added to 
the list of proposed enhancements announced in docket FMCSA-2015-0149, 
``Future Enhancements to the Safety Measurement System (SMS)'' 
published in the Federal Register on June 29, 2015. The Agency will 
propose this change and announce a preview of this change in a future 
Federal Register notice.

D. Preventability Determination Process

    The American Trucking Associations (ATA) provided a list of certain 
types of non-preventable crashes and suggested that FMCSA establish a 
process by which documents could be submitted on these crashes and they 
could be removed from the motor carriers' record. These crashes 
included when the CMV is struck by a motorist who:

     Was found responsible by law enforcement for the crash;
     Was the sole party cited;
     Was driving under the influence;
     Crossed the centerline or median;
     Was driving the wrong way;
     Struck the truck in the rear; or
     Struck the truck while legally stopped.


[[Page 45210]]


    Additionally, ATA recommended that FMCSA consider a crash non-
preventable when an individual commits suicide or vehicles are 
incapacitated by animals.
    There were many comments that indicated that PARs, as currently 
completed and submitted to FMCSA, are not adequate for completing a 
preventability determination. KSS Trucking noted, ``I must comment on 
the PAR accuracy in this situation. After reading the report and 
interviews I have noted some discrepancies. From something as simple as 
my license plate number . . . to something as extensive as my 
interview, there are differences in what was reported and what was 
recorded.'' Also, Advocates agreed with the Agency that ``PARS cannot 
be relied on to reach dependable determinations as to crash 
causation.'' Several commenters, including the ATA, National Waste and 
Recycling Association, and MTA, recommended that FMCSA require uniform 
PARs. The Oregon Department of Transportation recommended using PARs, 
Department of Motor Vehicle crash reports, and State motor carrier 
crash reports to determine preventability. Also, numerous commenters 
suggested using the Agency's existing Request for Data Review (RDR) 
process through the DataQs system for these requests.
    NM Transfer Company, Inc. and Vigillo LLC recommended that FMCSA 
require States to make preventability determinations with the funding 
they are provided through the Motor Carrier Safety Assistance Program. 
The National Motor Freight Traffic Association, Inc. added that it is 
their opinion that police are taught to find fault. AMSA and ATA 
recommended that FMCSA tell the States not to upload the crash if the 
CMV or driver was not at fault. The Institute for Makers of Explosives 
suggested that all of the crashes be reviewed using the process 
currently in place for applicants for Hazardous Materials Safety 
Permits.
    There were differing opinions on if and how the public could be 
involved in the preventability determination process. Advocates and the 
Owner-Operator Independent Driver Association (OOIDA) indicated that 
adjudications hearings are needed to protect the interests of all 
persons involved. Advocates also noted that the Agency did not propose 
any deterrents for filing fraudulently and excessively. OOIDA noted 
that, ``When the government seeks to determine whether a[n] individual 
or company is at fault for causing bodily injuries or property damage, 
it must provide the accused a right to a hearing before a neutral fact-
finder; the ability to offer evidence and witnesses; and the 
opportunity to challenge evidence and witnesses against them. Under our 
country's systems of legal fairness and due process, FMCSA may not 
unilaterally determine fault, notify the public of that determination, 
and punish the motor carrier by damaging its reputation. This is a 
problem with both FMCSA's current and proposed system of dealing with 
crashes. If there was a legal proceeding related to an accident where 
there was a finding of fault or admission, FMCSA may rely upon the 
determination of fault in that proceeding. That would be the only 
reliable source of information about crash fault to FMCSA.''
    Regarding the estimated costs for a preventability determination 
process, the National Tank Truck Carriers indicated ``this would be 
money well spent if it served the over-riding purpose of identifying 
unsafe driving behavior.'' However, several commenters, including 
Advocates, indicated that this would be millions of dollars ``that 
would not lead to any improvement in data quality.''
    FMCSA Response: The Agency considered the list of crash scenarios 
recommended by ATA and agrees to consider whether certain of these 
scenarios are most often non-preventable. As a result, the Agency is 
developing a demonstration program and a process for submitting 
documentation about these crashes through the DataQs program, similar 
to the process by which individuals may submit documentation of 
adjudicated citations. It will then evaluate the data to determine if 
the hypothesis offered by ATA--that certain types of crashes are non-
preventable--is proven correct, and, if so, whether changes should be 
made to the Agency's programs. A separate Federal Register notice 
seeking comments and input on a process to make preventability 
determinations on some specific types of crashes is available elsewhere 
in today's Federal Register and is also in docket FMCSA-2014-0177.

    Issued under the authority delegated in 49 CFR 1.87 on: July 5, 
2016
T.F. Scott Darling, III,
Acting Administrator.
[FR Doc. 2016-16427 Filed 7-11-16; 8:45 am]
 BILLING CODE 4910-EX-P


