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May 14, 2019 1:00 PM, EDT

Letter: Crash ‘Preventability’ Tough to Define

Transport Topics reports in its April 3 article titled “Crash Not Your Fault? FMCSA Says Soon It Won’t Hurt Your CSA Score” that the agency intends to identify no-fault crashes beginning in August. The article states the agency will implement its test “preventability” study and incorporate it into CSA without rulemaking.

As a frequent expert witness in up-supply chain accident litigation, I see how FMCSA data is typically misused by the plaintiff’s bar to try to damage the reputation of carriers and claim shipper and broker liability for negligent selection of carriers the agency has found to be fit to operate.

READ THE ARTICLE: Crash Not Your Fault? FMCSA Says Soon It Won't Hurt Your CSA Score

Adoption of the agency’s proposal without rulemaking would, I believe, only exacerbate up-supply chain litigation and nuclear verdicts without assisting the agency in fulfilling its mandate to provide accurate safety ratings for all 525,000 carriers.

Preventability is an artificial construct which the agency acknowledges has no legal meaning. The TT article confused preventability with carrier fault. The great majority of reported truck accidents which are not the carrier’s fault would not be scrubbed by the limited “nonpreventable” standards baked into the agency’s proposal — a fact confirmed by studies from the American Transportation Research Institute. Yet, if the agency’s proposal were put into effect, the absence of a nonpreventable finding by FMCSA would allow the plaintiff’s bar and juries to leap to the conclusion that the agency’s preventability determination was an alternative standard for determining fault causation and carrier fitness to operate.

Finally, publication of crash preventability, like publication of CSA methodology, is not FMCSA’s statutory charge. FMCSA is solely responsible for making safety fitness filings which the traveling and shipping public can rely upon.

Based on the agency’s track record with CSA and its Notice of Proposed Rulemaking, by using CSA data it is assigning safety ratings to approximately 12,000 carriers per year, less than 5% of the carriers it regulates. There has been no showing that calling balls and strikes on preventability can be done with due process or affect the agency’s performance and efficiency in issuing safety ratings. The same issues of data sufficiency, data accuracy and statistical validity which applied to CSA more broadly likewise apply to this initiative.

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If the agency were to handle DataQs for 150,000 crashes per year based on one crash per carrier, the most data the program could generate would result in preventability determinations for less than one-fourth of the carriers the agency regulates. As of March 29, FMCSA reports that less than 11,000 crashes had been submitted for review and less than 5,000 had been determined to be nonpreventable under the existing standards.

TT readers need to understand that the agency cannot, is not and should not be determining carrier fault.

Respectfully submitted,

David Gee, CTB

President

Alliance for Safe, Efficient and Competitive Truck Transportation