Federal Register Notice of Enforcement Policy, 73 FR 53383 (Sept. 16, 2008), states FMCSA Policy on Considering the Preventability of Crashes in Administrative Review Requests of HMSP Denials Based on Crash Rates in the Top 30 of the National Average under 49 CFR 385.407.

A carrier is to submit compelling evidence and adequate proof that a crash or crashes listed in the MCMIS were not preventable as part of their request for Administrative review, pursuant to §385.423(c), to FMCSA's Chief Safety Officer and the Office of Chief Counsel, Enforcement and Litigation Division.

In response to a petition for rulemaking, the Administrator agreed with the petitioner that the same "preventability" criteria that are used in the "accident factor" under 49 CFR part 385, Appendix A.III.B(d), should be applied when a carrier contests denial of an HMSP based upon its crash rate and provides compelling evidence that an accident was not preventable.

If the initial determination results in a finding that one or more of the crashes were not preventable, the safety permit application will be reprocessed with the relevant crash or crashes removed from consideration in the crash rate calculation. If the evidence submitted does not support a finding that the crash or crashes were not preventable then the carrier may still pursue its request for administrative review.

Additionally the determination of crash preventability will be considered for the purpose of processing a carrier's HMSP application if a carrier accesses their current Company Profile and knows that their recorded crash rate will likely be greater than the national average. Carriers are encouraged to use DataQs to contest concerns with crashes that occurred before the current twelve month period for crash rate calculation under the safety permit program.