FMCSA Is Going to Consider the Preventability of Accidents in CSA

This is a potentially a major deal. I, and pretty much the entire industry, have bitterly complained about DOT’s CSA system, in that it charges you for accidents which obviously aren’t your fault. This is particularly damaging to smaller carriers, where one or two non-preventable accidents can wreck your Accident score, and often cause an audit, all by themselves. I recently sat through an audit with a customer who has about 15 trucks. The audit was caused strictly by 3 accidents which were obviously non-preventable. The customer passed the audit, however, it was still expensive for him. He probably spent 2-3 days of his time preparing for the audit, and then he had to pay me. He should have never been audited to begin with.

They are calling this a ‘demonstration program’. This means they aren’t fully sure they are going to go full-time with this, and may reverse themselves. The rules of the program are you can only challenge accidents which happened after June 1, 2017. You may begin to challenge these accidents on August 1, 2017. You can only challenge certain kinds of accidents. They are:

When a truck was struck by a driver under the influence or a related offense
When a truck was struck by a motorist driving in the wrong direction
When a truck was hit in the rear
When a truck was hit while legally stopped or parked
When a pedestrian or car drives in front of a truck in an attempt to commit suicide by truck
When a truck sustains disabling damage after hitting an animal in the road
When a crash is caused by an infrastructure failure or falling trees, rocks or other debris
When a truck is hit by cargo or equipment from another vehicle

In order to challenge a non-preventable accident, you make your challenge through their DataQ process. If you don’t know what that is, email me. You provide your normal documentation, showing the accident is non-preventable, such as an accident report, dash-cam videos, etc. FMCSA will then make one of three determinations: Preventable, Non-Preventable, or Undecided, based on the definition of ‘preventable’ in the rules. That definition 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 or her control which would not have risked causing another kind of mishap, the accident was preventable.” If it is Non-Preventable, it will be removed from your score. Well, sort of. FMCSA is going to assign two Accident BASIC scores to a carrier. One will be the traditional score, which counts all accidents. The second will be without the accidents found to be non-preventable.

The Accident Score is hidden from the public on FMCSA’s CSA website. However, the individual accidents are listed. Also, shippers and brokers can obtain the Accident score, simply by demanding a carrier provide it when bidding on a contract. The score is an important component in determining who FMCSA decides to audit. FMCSA has not made it clear as to whether or not they will rely on the scores which remove the non-preventable accidents, or the more traditional inaccurate scores, where everything is counted. Here is their answer to that question in their FAQ’s:

“18. How does this Demonstration Program impact crashes reviewed for preventability during investigations?
Crash preventability determinations made during this Demonstration Program will not affect any carrier’s safety rating or ability to operate. FMCSA will not issue penalties or sanctions on the basis of the Demonstration Program determinations, nor do they establish any obligations or impose legal requirements on any carrier. These Demonstration Program determinations also will not change how the Agency will make enforcement decisions.

Information submitted about a crash as part of this Demonstration Program may be shared with the appropriate FMCSA Division Office for further investigation. Likewise, if an investigation reveals additional information about a crash for which the demonstration program made a preventability determination, this information may be shared within the Agency and the crash subjected to further review.”

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I can’t determine from that whether or not they’ll look at the accurate score or the normal, inaccurate score, when deciding whether to audit a carrier. You would hope they’d use the correct score, but this is FMCSA we’re talking about. In the example of my customer above, on the one hand, FMCSA would see an Accident BASIC score of 85, and on the other hand, they would have documents in their hand showing my customer’s Accident BASIC score was 0. You would hope they wouldn’t waste their time auditing a carrier when they know damn well those accidents aren’t the carrier’s fault.

I think it is critical that every carrier avail themselves of this program. First, I think it is slightly more likely than not that FMCSA will use the correct score in determining who to audit. Since CSA scores are determined by comparing all the carriers against each other, it is critical you keep up with your competitors. If your competitors got their no-fault accidents removed, and you didn’t, your score is going to be sky high. Second, you will be able to supply a correct Accident BASIC score to your shippers and insurance carrier, which will no doubt be lower than the normal, inaccurate score, which includes the no-fault accidents.