Regulatory Guidance for Recording of Commercial Motor Vehicle Accidents Involving Fires

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Regulatory guidance.

SUMMARY:

The FMCSA announces regulatory guidance concerning its definition of “accident.” The regulatory guidance is presented in a question-and-answer form. The guidance is generally applicable to drivers, commercial motor vehicles, and motor carrier operations subject to the Federal Motor Carrier Safety Regulations. All prior interpretations and regulatory guidance concerning the term “accident” issued previously in the Federal Register, as well as memoranda and letters, may no longer be relied upon as authoritative if they are inconsistent with the guidance published today. This guidance will provide the motor carrier industry and Federal, State, and local law enforcement officials with uniform information for use in determining whether certain vehicle fires must be recorded on the motor carrier's accident register and considered in applying the Agency's safety fitness procedures.

EFFECTIVE DATE:

This regulatory guidance is effective on July 24, 2007.

FOR FURTHER INFORMATION CONTACT:

Ms. Deborah M. Freund, Vehicle and Roadside Operations Division, Office of Bus and Truck Standards and Operations, (202) 366-4009, Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Legal Basis

The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98 Stat. 2832, October 30, 1984) (the 1984 Act) provides authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary to prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles. At a minimum, the regulations shall ensure that—(1) commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely; and (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators. (49 U.S.C. 31136(a)) Section 211 of the 1984 Act also grants the Secretary broad power, in carrying out motor carrier safety statutes and regulations, to “prescribe recordkeeping and reporting requirements” and to “perform other acts the Secretary considers appropriate.” (49 U.S.C. 31133(a) (8) and (10))

The Administrator of FMCSA has been delegated authority under 49 CFR 1.73(g) to carry out the functions vested in the Secretary of Transportation by 49 U.S.C. chapter 311, subchapters I and III, relating to commercial motor vehicle programs and safety regulation.

This document provides regulatory guidance to the public with respect to the definition of “accident” in § 390.5 of the Federal Motor Carrier Safety Regulations (FMCSRs), and the recording of accidents as required under § 390.15 of the FMCSRs.

Members of the motor carrier industry and other interested parties may also access the guidance in this document through the FMCSA's Internet site at http://www.fmcsa.dot.gov.

Specific questions addressing any of the interpretive material published in this document should be directed to the contact person listed earlier under FOR FURTHER INFORMATION CONTACT, or the FMCSA Division Office in each State.

Basis for This Guidance

The regulatory guidance in this notice responds to questions concerning the definition of “accident” in 49 CFR 390.5: Are all fires on CMVs considered reportable accidents?

Section 390.5 defines “accident” as an occurrence involving a commercial motor vehicle operating on a highway in interstate or intrastate commerce which results in a fatality; bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or one or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicles to be transported away from the scene by a tow truck or other motor vehicle. It excludes occurrences involving only boarding and alighting from a stationary motor vehicle or involving only the loading or unloading of cargo.

Fires were included in the original 1962 definition of “recordable accident,” but were not explicitly mentioned in later versions of the FMCSRs. The Interstate Commerce Commission's (ICC) final rule of August 25, 1962 (27 FR 8551) defined “recordable accident,” (for purposes of filing a form MCS-50T for accidents involving property-carrying vehicles or MCS-50B for accidents involving passenger-carrying vehicles) as

Any occurrence in the interstate, foregin [sic], or intrastate operations of a motor carrier subject to Part II of the Interstate Commerce Act, which * * * results in the death or injury of a person, or in property damage * * * to an extent of $240.00 or more * * *.

The term included, but was not limited to, eight types of accidents. Item 4 was “fire or explosion in or on a motor vehicle.”

A final rule of September 7, 1972 (37 FR 18079) eliminated the list of examples of types of accidents and focused on three different outcomes that would provide the criteria for reporting an accident. The Agency revised the injury criteria to cover only injuries requiring medical attention other than first aid at the accident scene, and increased the threshold for property damage reporting to $2,000. The Agency explained “Accidents which formerly fell into those special categories, such as those involving overturn of a vehicle, fire, or explosion, will continue to be reported if they result in death, personal injury, or property damage of $2,000 or more.” [emphasis added] The property damage threshold was later raised to $4,400 before being replaced with a “disabling damage” criterion in a final rule published on February 2, 1993 (58 FR 6726). That final rule also revised the injury criteria to cover bodily injury to a person who, as result of the injury, immediately receives medical treatment away from the scene of the accident.

It has been the position of FMCSA and its predecessor agencies that the definition of “accident” applies to both collision and non-collision incidents involving commercial motor vehicles. If a fire or explosion results in a fatality, an injury, or disabling damage to a motor vehicle, it must be considered a recordable accident based on the current regulatory definition under 49 CFR 390.5. Therefore, this notice should not be construed to be a revision of the criteria for recording CMV accidents. Rather, its purpose is to emphasize the importance of recording CMV accidents as defined under Section 390.5 that do not necessarily involve collisions.

FMCSA acknowledges the potential impact on motor carriers' Safety Status Measurement System (SafeStat) scores that could result from States uploading reports about fires into the Agency's Motor Carrier Management Information System. However, in the interest of safety, we believe that we need to gather data on the prevalence of fires, and that motor carriers must be responsible for documenting these events and taking action to prevent injuries and fatalities associated with CMV fires. The inclusion of fires in the Accident Safety Evaluation Area (SEA) of SafeStat would, at its worst, only increase the likelihood of an on-site review of the carrier's safety management practices, depending on the number of these events.

Regulatory Guidance

PART 390—FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

Sections Interpreted

Section 390.5 Definitions

Question: Does an explosion or fire in a commercial motor vehicle (CMV) that has not collided with other vehicles or stationary objects meet the definition of an “accident” under § 390.5?

Guidance:

Fires have been included in the definition of “accidents” since 1962. However, in an effort to simplify the regulatory text, the agency removed the specific references to fires, rollovers, and other noncollision accidents in 1972. As the agency indicated, however, its intent was to include all of these items as accidents (37 FR 18079, September 7, 1972).

A fire or explosion in a CMV operating on a highway in interstate or intrastate commerce would be considered an “accident” if it resulted in a fatality; bodily injuries requiring the victim to be transported immediately to a medical facility away from the scene; or disabling damage requiring the CMV to be towed. A collision is not a pre-requisite to an “accident” under § 390.5.

Any CMV fires that meet the accident criteria in 49 CFR 390.5—that is, fires that occur in a commercial motor vehicle in transport on a roadway customarily open to the public which result in a fatality, bodily injury requiring immediate medical attention away from the scene of the accident, or disabling damage requiring a vehicle to be towed—will be considered in the safety fitness determination. As indicated in Appendix B to 49 CFR Part 385, FMCSA will continue to consider preventability when a motor carrier contests a safety rating by presenting compelling evidence that the recordable rate is not a fair means of evaluating its accident factor.

With regard to fires, preventability will be determined according to the following: If a motor carrier, that exercises normal judgment and foresight could have anticipated the possibility of the fire that in fact occurred, and avoided it by taking steps within its control—short of suspending operations—which would not have risked causing another kind of mishap, the fire was preventable.