Don't play 'badminton in the dark' in the compliance game: Truckers' nonpreventable-crash DataQs of utmost importance

Rick Gobbell: How many of you have filed DataQs? And for those who did not raise your hand, you're playing badminton in the dark because these big carriers are filing them. These carriers who are knowledgeable of the regulations are filing them, the people who have knowledge of CSA SMS.

If you're not filing them, what does that mean? That means that every crash that they have on you is considered a preventable crash. Every roadside inspection they have on you is considered accurate data if you're not DataQing and that's the only way you have to get roadside inspections changed, violations changed, taken off or a crash to be determined non-preventable.

Todd Dills: That was the voice of Rick Gobbell, proprietor today of his Gobbell Transportation Safety Compliance Consulting business after a long career around trucks and trucking, first on the road as an enforcement officer, then in government directly.

Rick Gobbell: State guys always called me the head fed. I was the safety registered vehicle inspector in Tennessee, up at FMCSA there for about 15 years. I retired sometime ago. This makes 51 years of me being involved with commercial highway safety and everything CSA rules directly for about 51 years. I started when I was five years old, if you believe me and-

Todd Dills: I'm Todd Dills and in this edition of Overdrive Radio we'll hear more from Gobbell, speaking from the Conference of the National Association of Small Trucking Companies this past November. In an effort to emphasize the importance of the Federal Motor Carrier Safety Administration's DataQ system for the smallest fleets, particularly when it comes to the agency's several years old now Crash Preventability Determination Program.

Regular readers will know Overdrive's and our sister publication CCJ's Preventable or Not? Series of videos illustrating crash scenarios that in past have been judged either preventable or non-preventable for the truck's driver by the National Safety Council. That preventability standard underpins FMCSA's crash review program. For any carrier who submits a crash in the DataQs system and has it judged non-preventable, the crash is then excluded from calculations that the carrier scores in the CSA Safety Measurement System. If you never request a crash review in cases that might be non-preventable, as Rick Gobbell sees it...

Rick Gobbell: That means that every crash that they have on you is considered a preventable crash.

Todd Dills: That is, though the system is not set up to designate every crash that happens as preventable per se, Gobbell believes reality is that the crash will be defacto assumed to have been preventable by anyone using the SMS there. Federal and state safety auditors, insurers, brokers and shippers.

His session at the NASTC Conference aimed to emphasize the importance of the crash review system for the small fleets in attendance. Lending the benefit of his own experience assisting others in crash review DataQs filings. Also, we wanted to emphasize improvements to the crash preventability review program to potentially include many more crash types, including any crash with solid video evidence. FMCSA's in the process of making those improvements in part to address core complaints about the review system.

Rick Gobbell: I saw many DataQs of the previous guidance. There is no harder pill for either myself or motor carrier to swallow than a denial when the only way the driver could've avoided their crash was to have not been there at that time.

Todd Dills: After the break, we'll get into some of those changes that should improve the system if adopted. But first...

Rick Gobbell: Not only to talk about where we're going with DataQ but where we are right now.

Todd Dills: Where we are right now, and a little bit about how we got there, after the break.

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Todd Dills: That's H-O-W-E-S, howesproducts.com. Here's Rick Gobbell, telling how we got to a place where the Crash Preventability Determination Program assumed the importance it has today with ever a greater focus enforcement wise on, you got it, data.

Rick Gobbell: The way we got to where we are is CSA SMA for the SafeStat. Once the agency started to gather all this data on trucking companies, what they have, they have your form MCS-150 that you file every three years and how many miles you operate, how many drivers you got, how many trucks you got, so on and so forth. They have roadside inspections every time your truck goes through a roadside inspection FMCSA gets that data and they have everything, they have crash data.

Every time that your vehicle is involved in a recorded crash [inaudible 00:05:16] nurse, injury [inaudible 00:05:18] fatality, towed, the FMCSA gets some data on that crash report. They do not get the crash report, they just get certain data from that crash report. So they use that data to calculate what they think that you may be a high risk motor carrier to be involved [inaudible 00:05:37] in more accidents than carriers of your group. Five different groups, they're called peer groups and if you go on CSA SMS with your USDOT number and your pin number or you got a portal set up, you will see these screen prints right here and what you do not want is these alerts.

Todd Dills: Gobbell's referring there to the exclamation point in a golden triangle marking a carrier above the "intervention threshold" in any CSA safety measurement system category. Meaning the carrier could be prioritized for an audit by federal or state enforcement. He then showed a particular carrier's internal view of crashes logged in the system.

Rick Gobbell: This particular one here I think is crashes and that's how they list out your crashes. You see, you'll see fatals, injuries or tow. As we get into this thing, I want to talk to you about how all your data's used. How many of you have filed DataQs? And for those who did not raise your head, you're playing badminton in the dark because these big carriers are filing them. These carriers who are knowledgeable of the regulations are filing them. The people who are knowledge of CSA SMS, if you're not filing them, what does that mean? That means that every crash that they have on you is considered a preventable crash. Every roadside inspection they have on you is considered accurate data if you're not DataQing and that's the only way you have to get roadside inspections changed, violations changed, taken off or a crash to be determined not preventable. That's it.

That's all you got. So what they do, what they do with CSA SMS. CSA SMS is a ranking system and in your group carriers are supposed to be like you, number of drivers, number of miles, number of inspections. That's supposed to be, they put these in these groups and you're in that group and every month they evaluate that group. Now you know what bell... They call it percentile ranking. What does percentile ranking mean? And I want you to know, so let me tell you what it means. When you was in school and you had a bad test. You remember when the teacher would curve it and you might get a better grade? Of course I prayed for it when I was in college but it is a bell curve measurement system. So in your group, you're evaluated based on that monthly bell curve measurement, you can get better or you can get worse by what the people in your group do.

So what if the people in your group are filing DataQs and winning? Then it slides downhill to you. You may very well get an alert because you have a crash on your CSA data that were not preventable but you didn't ask them to take a look at it, which means they're coming to see you and I'll talk a bit more about that, really got to run through this thing pretty fast. Go fmcsa.dot.gov and look for DataQs and you'll find this. These are currently the only crashes that you can DataQ. Only ones.

Todd Dills: Find a link to the full list Gobbell showed here in the show notes or in the post that houses this podcast dated January 22nd, 2024 at overdriveonline.com/overdrive-radio. Gobbell went on to enumerate a few examples of crashes eligible for preventability reviews.

Rick Gobbell: Struck in the rear. This one is not eligible. The vehicle that struck the CMV was traveling next, you see a part of the crash and struck the CMV on the side. How could your driver avoid this crash? You're going down the road, you're in the right lane [inaudible 00:09:32] roads in the side lane. How can you avoid that crash? You can't, but they'll not... And there's some more that we can look at. Struck in the side. Now if you strike it in the side and the rear, now what's the difference? Tell me what the difference is.

Difference is they do not want to determine these crashes to be not preventable. There's 150,000 recordable truck crashes per year in the United States. ATA has said that 75% of them are not the trucker's fault. 75% are not the trucker's fault. Well CSA SMS don't consider that. If you're not DataQing these and getting them off your CSA score, then they think it's your unsafe care based on that particular basic.

Now we've got some other basic but the crash basic is one of the favorite basic. You get a high crash score, pretty good chance you made the audit list. Let me call it a target list. What I always like to look at is whether it's eligible or not, see, this guy hit us, not at the rear, just hit us in the side. Same thing here. Hits us right at the rear. It's eligible. See that word right there? And if it's not eligible, you'll get a real quick response back from the DataQ folks saying this crash is not eligible for review, which means they just denied the request. Across the center line, had his head on, eligible. The vehicle that struck out drove over the medium and hit us. That could be determined, not preventable. Another car hits us, knocks it in to us, that could be considered this one here.

Now, one way street, eligible, where there are sideswipes, not eligible or somebody comes and sideswipes, not eligible. [inaudible 00:11:24] you're not eligible. That's what you get back. So how many of you that file DataQ just file DataQs on everything? Don't, you'll lose credibility. Make sure that before you file a DataQ, you know what's eligible, what's not and refer their DAs to that particular eligibility section.

Act like you know what you're talking about when you file DataQs. Now that's just all crashes. Same thing with roadside inspection violations and I get on the agency pretty bad because I worked there 32 years and I saw all this stuff evolve slowly. We just kept digging deeper and deeper into the motor carriers to see what we could do. They call it enhanced investigating techniques. That's what they tell their SIs now, when you go in and, use the advanced and enhanced investigative techniques, dig deeper, find something, don't come back up here in my office and tell me you didn't find the thing. Dig deep. That's what they're doing here to try to protect this data. Now the 150,000 crashes, if 75% of them are not the trucker's fault, that tears up CSA SMS. The CSA SMS is calculated on all crashes. All crashes. So they're doing their best to protect CSA SMS is what they're trying to do.

Todd Dills: To illustrate the importance of using the DataQ system where it's possible to prevent the agency's use of crashes in calculating a carriers score, Gobbell pointed out the fact that insurers among others are still using access to the background data in the system in their insured's risk assessments.

Rick Gobbell: How many times has your insurance called you up to say, "I see that your score is high and we're going raise your premium." When you go and try to get a new insurance agent, a new insurance policy. They say, "Do you have high CSA SMS score?" How'd you know? It's not public information? That's because the agency sends it out every night to these insurance companies. So, why it's not public is it's available under FOI for you to replace that and these insurance companies and everybody is using this data, these plaintiff or attorneys, I do a lot of expert witness work. I do not work nor do I rule work on the plaintiff's side where somebody says, I heard trucker owed me $40 million. I don't work on that side. I work on the Fed side or the carriers and I have to defend what these plaintiff bar attorneys and their experts say.

Todd Dills: Rick Gobbell offered several examples then via video of crashes that get harder to defend when FMCSA's CSA system counts them in its CSA carrier scoring methodology in spite of the fact that the carrier had no way of avoiding the incident and in at least one case, no real primary involvement in the accident at all. The first example he cited as one that brought on the need for crash data cues. The video showed an accident happening way out in front of a motor coach between passenger vehicles that killed an individual in the street. During the crash, a wheel left one of the cars and the nearby coach then simply ran over that wheel as it shot toward it.

Rick Gobbell: By us running over that tire, FMCSA posted that as us being involved in a fatal crash and all we did was run over that tire. We didn't hit nobody. We didn't cause no crash and they would not take it off. I took this video to Washington and at that time I was very fortunate to have congressman, John Duncan who sat on the transportation and infrastructure committee in DC and I showed him as a class, the video and I said FMCSA has... and this particular is actually a motor coach, motor coach guy that's shown having two fatal crashes. This one and another where a car come across road, hit him head on.

John said, "But why do they put that out there?" I said, "Because they want to, because they want to make our trucking and the bus industry look dangerous and scary so that they can pass legislation against us." He said, "I'll see what I can do." Next thing I knew there was a bunch of DataQs [inaudible 00:15:35]. They don't tell you how this stuff works. You just know that I did this. They did that. Got me some coalition. Now watch, this is pretty good. Now I'm not advocating dash cams. They're good and they're bad. Nothing's worth, this is not a good one. I'll see what I can do here.

This guy, if you'll watch real close, watch that red light right there. It's as red as it can be. Car come in, lady's sitting in her car, fixing to go out on that street. We're sitting there at the stop sign and right as he went by and the light turned green, what she did? She never looked in both directions. She just took off, run into the side her truck. Now she's claimed she's hurt. She'll never be able work again but that's what it was and that would've been a preventable crash. That's why I'm saying, these dash cams are good and they're bad. Now what the plaintiff bar said was, "We didn't control this driver." You can't ride with every driver every day. How many have been a truck driver? Most of you? Yeah. And what could you have done other than not run that red light? So they said, "Should have been doing training, should had these policies."

And they did, that is a gasoline hauler out in Texas. They had every kind of program you've ever had, this driver's completed 30 different safety programs. It was documented. So we're good with that. Actually, that you DataQ and you win. Do not go into, your crash basic score. That's big because when you're talking about small trucking companies just like you guys, 95% of the trucking companies in this country, we've got somewhere around 1.5 million trucking companies. 95% of them have less than 10 trucks. So if you have 10 trucks and you have two crashes a year, you're going to be alerted in CSA SMS, whether your fault or not. Two avoidable crashes.

But like I say, I don't file unless I think I can win them. It's just not fair to the carrier to get their hopes up. I did file one the other day, lady just insisted. I said, "Ma'am, we're not going to win this one." She said, "I'm going to pay you whether we win or not." I said, "When do you want it."

So the question is, are you monitoring for your company's FMCSA system's website? If you're not, you're playing badminton in the dark. And if you set up an FMCSA DataQ system, username, password. It's real easy to do. If you're not doing it, you need to do it. So you get back, this afternoon when you take a break, are you filing DataQs? Are you DataQing non-preventable crashes? Are you being successful? Now talk a bit about that, a little bit more on that in a minute.

Going to regulations.gov, www.regulations.gov and plug in docket number, FMCSA-2022-0233. That's the changes that they're proposing to change the DataQ program. Now why would they change it? They like it like it is. Why are they changing it? I'm going to tell you why they're changing it, because they're working, right now, as you and I are sitting here today, the agents is sitting up there working, trying to figure out how to issue you a safety rating and never come see you.

To issue a safety rating based on nothing more than CSA SMS data. You can get a conditional unsatisfactory safety rating and nobody will ever come see you. You'll never see anybody, you'll just get a letter in the mail one day that says, "Your CSA scores and your safety rating." So why the hell did they do, knowing that they want to do this and they've been trying to do this two or three years. We got them cut off one time from doing it. I don't think we can cut them off under this administration.

Todd Dills: Gobbell’s referring there to a narrative that attorney Hank Seton spun for listeners here last summer, connecting the dots between the expansion of eligible crash types in the Crash Preventability Determination Program in hopes to revamp the safety rating system, as FMCSA has pursued in the past. Gobbell noted that revamp could be described based on data collected without even an in-person audit. DataQing non-preventable crashes could thus assume far greater importance for carriers large and small in future, as he suggests.

Rick Gobbell: A shift in the burden to you to prove that you were not at fault whether you were or not. If you don't try to prove to them that you were not at fault, these CSA scores are going in as a at fault crash and your safety rating may very well be reflective of your at fault crisis or crashes they received where, they don't know whether they're preventable or not preventable. When we first went to that, because I had to set my state up to get the data but I believe we had 50 data elements that the states had to furnish us in a different type of report, do it on the internet or do it on a computer. It says, "This is a driver, this is truck information." They didn't get the narrative of what the police officers said. They don't get that. They just get these data elements.

The truck driver and DOT number. DOT number, whatever else. This program reviewed 16 specific crash types and modifies information. The FMCSA proposed the existing crash types to broaden eligibility. That's important, to broaden eligibility and that's what they're trying to do. Now they talk a lot in this proposal about some of the crashes that were reviewed and I think sometimes even though... Who reviews those crashes? If you file a DataQ of a crash, who reviews? A contractor for the FMCSA in Kentucky.

They're up there at the University of Kentucky somewhere around up there and these contractors review your data. What does your reviewer do? He looks first at what you say and then he goes and look at what's eligible or what's not. And his job is to keep you from winning. Only eligibility. No subjectivity, all objective. So with enhancing this thing, it's going to give again, us an opportunity to keep our CSA SMS scores down. So instead of them hiring somebody to do it, you got to hire somebody to do it. That's how we would say it or add it on, the last straw that broke the camel's back, one of the two and you had an opportunity to file comments on this. How many of you file comments on there? Anybody else?

Anybody else here file comments on it? No. They've got 62 comments, is all they got. 62, out of 1.5 million trucking companies, they got 62 comments. I'll show you some of them. The FMCSA seeks comments, the FMCSA will respond to comments. When they say respond, they're going to write you a nice little letter say "Hey Rick, thanks a lot for filling those comments. We appreciate it and we appreciate you working with us on this thing." I'm going to get a letter like that. What they mean is, in the docket, they'll eventually say, well we received this comment from this person, maybe we did and then 20 of them said this and that's what it says. So that's what they mean, they'll respond in the federal-

Todd Dills: I'll post the link to just what FMCSA proposed in the show notes. It's getting on seven months ago now when they did it and it lays out the new and revised crash types that are eligible for review. Gobbell outlined some of the new crash types including any side strike of a truck by a vehicle moving in the same direction on a roadway. It was previously limited only to side strikes at the very rear of the truck that pulled the trailer, among others. He found some things to like about the expansion. Perhaps the reason why so few commented one way or another on the program. Yet again though, changes which haven't been fully implemented mean nothing if carriers aren't filing request reviews in the DataQ system.

Rick Gobbell: Folks, you've got to file them. You've got to file them. I can't say it enough. Sylvie was struck because another motorist lost control of the vehicle. We saw a lot of that. Saw that in that one, that video where the driver in the rain and the car was front out in front of him and he hit everybody. That right now would not be considered a not preventable crash, under the new system it should be not determined to be not preventable. CMB was involved in a crash with a non motorists, airplane land on us, what happened? I don't know. We got one about walking stuff but I don't know. We'll have to see what they expand on that. This has just comes right out of that rule, that post change. See if it's about a crash type that settle occurs, it does not mean another elevated requirement. Struck by an airplane.

Todd Dills: The agency proposed a new eligible crash category too that should expand the program extensively I'd wager, given the profusion of event recording cameras in trucks run by carriers of all sizes, including plenty of owner operators as our midyear 2023 Trucking State of Surveillance series and survey made clear. That new category would bring in the possibility for review of any crash for which video demonstrates the full sequence of events.

Rick Gobbell: What they're telling us now, they like these videos, they like these dash cam videos. That's what they're telling us. They really hadn't liked them up till now, but they're now really liking these dash cam videos. I don't know if [inaudible 00:25:22] you think it was. All right, so what I do, there's the 62 comments. That's all. They ought to been 1,000, ought to have been 10,000 comments saying this is a good idea, let's do this because most people, like most people sitting in here today do not understand CSA SMS or how it works and we don't really expect you to and the government don't want you to know. Some of the algorithms to determine CSA SMS score and, I'm a college graduate, I don't claim I did good at it. I barely got by but I had a big time.

I had a great big time, I got a four year degree in just five short years. But I was persistent and I had two choices. I could go to school or Vietnam. That was my two choices and that was an easy choice to make in 1972 I'll tell you. So anyway, we got to hold the accountable, accountable and exonerate the dedicated driver, the carries who are doing the right thing. You've got to do that. In fact, this is some of the comments that I copied out of the 62 comments. I didn't copy them all, but I copied of some. It would also be helpful if the agency could find a way to expedite CDPC, Crash Determination Preventative request, currently is, I'm telling you, I've got it, it takes 90 days to do it and in the meantime those crashes count towards your scores.

So even though as we file them, they'll sit on them for 90 days, especially if they're going grant them. I know that they're probably going to grant them, I got a better chance of them granting them when it gets 30, 60, 90 days off. But that means you get three months of CSA scores that include that crash before they determine not to be preventable. And then if they determine it not to be preventable, let's say before the 25th of the month, then you get another month on top of that before showing to CSA SMS, they overrun CSA SMS once a month, that's on the 25th. Not when it [inaudible 00:27:34].

Todd Dills: The FMCSA continues to run about 90 days in arrears on crash reviews. At least that's the official line at the Crash Preventability Determination Program website today. I asked FMCSA reps about the time lag on crash reviews and whether perhaps it was running either longer or better, shorter today. "90 days is about right." They said. I also asked about a timeline for potential implementation of those revised and new crash types mentioned in last Spring's request for comments on potential updates to the program.

FMCSA reps noted the agency was in the process of drafting response to those 62 comments for publication in the federal register but that generally a decision had not been made about final implementation or even to adopt them. Rick Gobbell for his part continues to view potential implementation through the lens of his time working with the FMCSA himself as division lead in Tennessee. Given his view that the Preventability review program goes aways towards showing up the fairness of agency crash data and its use in the CSA SMS and the current administration's pursuit of safety raising as mentioned earlier, given all of that.

Rick Gobbell: They want to get this rating methodology changed to where they can issue you a safety rating based on nothing but CSA SMS data and they will do that before the agency, before the administration change, they may very well get this out because it's going to be hard to get one out without this one getting out. The first one. The public will be in a little bit of an up roar about that.

Now, here's my comments. I told them who I was, what I've done. Of course they never forgot about me. Matter of fact, they'll be glad when I die. Since my retirement, I've now been a consultant expert [inaudible 00:29:22] for 16 years. This is about 51 years CVM highway safety. I fully supported their public changes in this program. I filed many DataQs under the previous guidance. There is no harder pill for either myself or motor carriers to swallow than a denial when the only way the driver could have avoided a crash was to have not been there at that time. That's a hard pill for me to swallow and for the trucking industry to swallow. When you know there's absolutely nothing my driver could have done except not been there at that time and they deny my request.

Todd Dills: You can find Rick Gobbell's full commentary, supportive of the preventability program changes in the docket for FMCSA's notice and request for comment posted last year to regulations.gov. Find a link to the docket in the show notes wherever you're listening or in the post that will house this podcast for January 22 at overdriveonline.com. We've offered plenty tips and tricks over the years on filing DataQs furthermore, with an eye toward enhancing owner's success rates, including DataQ requests for crash reviews in this new program, live for several years now, if Gobbell's right as noted.

Rick Gobbell: Folks you got to file them. You got to file them. I can't say it enough.

Todd Dills: If you don't file them when the worst happens, you won't reap the rewards in the unfortunately guilty until proven innocent preventability system, Gobbell also noted among commentary on the docket. Finally, Overdrive Radio's on Spotify, SoundCloud, Apple and Google Podcast, tune in, most any platform. Big thanks for listening. Subscribe so you don't miss an episode if you're not yet and if you're enjoying these, go ahead and leave us a rating or a review there. Big thanks in advance for that too.