On August 1, 2019, the Federal Motor Carrier Safety Administration (FMCSA) will make permanent a newly tested program that allows motor carriers to request that crashes the carrier believes were not the fault of their drivers be reviewed by FMCSA for the purposes of making a determination of fault. Under the new program, which has been in effect for nearly two years, if the FMCSA determines that the motor carrier’s driver was not at fault, the crash will be listed as “not preventable” in the carrier’s Compliance, Safety, Accountability (CSA) scores. The program currently classifies a crash as “not preventable” on a carrier’s Safety Measurement System profile in instances where the carrier is not at fault. If the crash is determined to be “not preventable” it will not count against the carrier’s CSA score, but will still be documented. However, before that determination can be made, a carrier must submit a request for data review through the agency’s DataQs system. In addition to a simple request for a review, carriers must attach documentation that establishes the carrier could not have avoided the crash. This could include police crash reports, citations for other drivers involved, or proof of a favorable judicial disposition, among other items. Under the demonstration program, to be considered for a “not preventable” rating, a crash must have resulted in a fatality, bodily injuries requiring immediate medical treatment away from the scene of the crash, or a vehicle being towed from the scene of a crash. Specifically, there are eight types of crashes that would be automatically eligible for a review. They include a crash in which a commercial motor vehicle is struck by a motorist driving under the influence, struck by a motorist driving in the wrong direction, struck in the rear, or being struck when the commercial motor vehicle is legally stopped or parked. However, other crashes can be reviewed on a case by case basis to include individual attempts to commit suicide by stepping or driving in front of a commercial motor vehicle (CMV), a crash that damages a CMV after striking an animal in the roadway, a crash in which a CMV is struck by objects such as falling trees or rocks and instances in which a vehicle is struck by cargo or equipment from another vehicle. Additionally, U.S. Secretary of Transportation Elaine Chao has said that the DOT will review other possible crash scenarios to possibly expand the current categories. While the FMCSA still takes the position that crash frequency regardless of fault is still an indicator of likelihood of future crashes, this move represents a willingness of the agency to take a more open approach to reviewing fault as well as the extension of an olive branch to an industry that has been pining for a program of this sort for years. Importantly, the FMCSA has announced that the program can be made permanent without a formal rulemaking, so it appears that there will be no impediments to the permanent implementation of the new program. Should you have any question about how the new program will affect your particular CSA score or any related questions, please contact Steve Setliff at (804) 377-1261 or ssetlif@setlifflaw.com.