Introducing the CPDP – A Product of Public Feedback
Change is coming to the realm of the trucking industry - the motivation? The voice of the public. From start to finish the Crash Preventability Demonstration Program was prompted by motor carriers and drivers who wanted to be more accurately represented in the (SMS) Safety Measurement System. This program from the FMCSA (Federal Motor Carrier Safety Administration) determines which motor carriers need intervention from the Department of Transportation.
Essentially, the CPDP will allow motor carriers the opportunity to prove that certain crashes they were involved in were not preventable. Crashes with a Not-Preventable decision will lower the motor carriers SMS score as well as other benefits, which we will look at in this article.
After a 2015 study put out by the FMCSA brought up the question of a motor carriers role in a collision being used to affect their safety. The American Trucking Association submitted a petition asking for a process to be created that would allow a motor carriers' non-preventable crashes be taken off their record. Because of this request, the FMCSA rolled out a demonstration program to test the possibility and effectiveness of such a program. From August 1, 2017 to May 31,2019 there were 12,249 accidents that were submitted for data review, with 93% of the eligible crashes being found in the favor of the motor carrier as not preventable. See graph below (Information taken from 38088 Federal Register/ Vol. 84, No. 150 / Monday, August 5, 2019 / Notices)
For an accident to be eligible it had to fit a specific crash type with simple enough data to easily determine if it was preventable. More on this below
ELIGIBILITY OF ACCIDENTS
The Crash Preventability Demonstration Program is now permanently in effect and accepting all accidents from August 2019 forward. The eligible categories have been slightly expanded in the now permanent program, they are as follows:
Types of Eligible Collisions for Review
- Struck in the Rear type of crash when the CMV was struck:
- in the rear; or
- on the side at the rear.
Wrong Direction or Illegal Turns type of crash when the CMV was struck:
- by a motorist driving in the wrong direction; or
- by another motorist in a crash when a driver was operating in the wrong direction; or
- by a vehicle that was making a U-turn or illegal turn.
Parked or Legally Stopped type of crash when the CMV was struck:
- while legally stopped at a traffic control device (e.g., stop sign, red light or yield); or while parked,
- including while the vehicle was unattended.
Failure of the other vehicle to Stop type of crash when the CMV was struck:
- by a vehicle that did not stop or slow in traffic; or
- by a vehicle that failed to stop at a traffic control device.
Under the Influence type of crash when the CMV was struck:
- by an individual under the influence (or related violation, such as operating while intoxicated), according to the legal standard of the jurisdiction where the crash occurred; or
- by another motorist in a crash where an individual was under the influence (or related violation such as operating while intoxicated), according to the legal standard of the jurisdiction where the crash occurred.
Medical Issues, Falling Asleep or Distracted Driving type of crash when the CMV was struck:
- by a driver who experienced a medical issue which contributed to the crash; or
- by a driver who admitted falling asleep or admitted distracted driving (e.g., cellphone, GPS, passengers, other).
Cargo/Equipment/Debris or Infrastructure Failure type of crash when the CMV:
- was struck by cargo, equipment or debris (e.g., fallen rock, fallen trees, unidentifiable items in the road); or crash was a result of an infrastructure failure.
Animal Strike type of crash when the CMV:
- struck an animal
Suicide type of crash when the CMV:
- struck an individual committing or attempting to commit suicide
Rare or Unusual type of crash when the CMV:
- Was involved in a crash type that seldom occurs and does not meet another eligible crash type (e.g., being struck by an airplane or skydiver or being struck by a deceased driver).
The FMCSA has put out a great resource on determining eligibility, See that here
Submitting a crash will be done through the DataQ's website (https://dataqs.fmcsa.dot.gov/) by the Motor Carrier. A private individual is able to submit documentation for review, but this must be done to the email email@example.com. The FMCS has decided that due to lack of public interest and input from Greyhound Lines during the demonstration period, that they won't be posting a listing of accidents for public viewing. To submit a collision for review, there must be documentation uploaded; the burden of proof is on the submitter of information. Below are the items required and recommended for the submission of an Request for Data Review (RDR).
SUBMISSION REQUIREMENTS & RECOMMENDATIONS
- POLICE ACCIDENT REPORT (REQUIRED) - During the trial period, the FMCSA reviewed over 15,000 Police Accident Reports; it is realized that officer who review these accidents are the most qualified to make determinations and record accurate statements. Due to that fact, all RDR's must be accompanied by a police report to be eligible.
- DRUG & ALCOHOL TEST RESULTS (REQUIRED IF FATAL) - A Drug and Alcohol test result is required from the motor carrier for an accident that results in a fatality. To use the "Under the Influence" crash type, their must be a document that proves this regarding the other driver, that could be the police report, a field sobriety test, or even documentation of a refusal to test.
- SUPPLEMENTAL INFORMATION - The DATAQ system will allow any supporting documents, video, pictures, and court documents. THE MORE INFORMATION THE BETTER!
DETERMINATIONS, RESULTS, AND THE ISSUE OF FAULT
After being reviewed, accidents will be determined to have one of three categories: Reviewed - Preventable, Reviewed-Not Preventable, and Reviewed-Undetermined. The Preventability Standard - “The standard for making a preventability determination is provided in 49 CFR part 385, Appendix B, section II.B(e): “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, the accident was preventable.” Let's look at what the different determinations are and also the results they bring.
Reviewed - Preventable - A determination of Preventable means that due to the evidence presented the FMCSA believes the driver could have avoided the crash. The released wording on this is, "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." (RESOURCE HERE) A Preventable collision will still affect the motor carrier's BASIC score and the PSP report won't be adjusted. This determination will automatically be applied in the following circumstances:
- A Positive Alcohol or Drug Post Accident Test or refusal to test
- No documents submitted (As the burden to prove preventability is on the motor carrier)
- Operating on an Out of Service order, this applies to the vehicle, load and/or driver. This also includes if a post-crash inspection report shows there was a pre-existing condition that should've caused an OOS order.
Reviewed - Undetermined - After review of all submitted data, the reviewers were unable to come to a clear conclusion of either preventable or not-preventable. BASIC score is unaffected.
Reviewed - Not Preventable - A determination of Reviewed-Not Preventable will be the only determination that works in favor of the motor carrier, lowering the Crash Indicator on their BASIC score. Also for a Pre-employment Screening Program (PSP) report pulled, this determination will be clarified for the driver.
THE ISSUE OF FAULT
During the demonstration period, there was concern that any determination from the federal government could be used in a civil lawsuit as evidence of fault. Negligence is a serious word in the trucking industry with life-altering consequences almost every time. What would a determination of "Reviewed - Preventable" do in a court of law? Are the reviewers and submitters qualified to affect the outcome of complex legal matters? As it pertains to the Crash Preventability Determination Program those questions won't have to be answered. Two quotes below:
“FMCSA emphasizes that these determinations do not establish legal liability, fault, or negligence by any party.” (SOURCE)
“Under 49 U.S.C. 504(f) FMCSA’s preventability determinations may not be admitted into evidence or used in a civil action for damages and are not reliable for that purpose.” (SOURCE)
WHO TO THANK
This program wouldn't have come about unless both individuals and organizations outside of the government decided to speak up and recommend changes and ideas. There is power in democracy and power in your voice, don't waste that. Below are some key organizations that used their voice to help the trucking industry:
ATA - American Trucking Association
Greyhound Lines Inc.
International Food Service Distributors Association
National School Transportation Association
MCRRC - Motor Carrier Regulatory Reform Coalition
NASTC - National Association of Small Trucking Companies
OOIDA - Owner Operator Independent Drivers Associations
Truckload Carriers Association
Federal Register, Notice of Permanent Program - 5/6/2020