Trucking tells FMCSA crash reporting presumes drivers guilty

WASHINGTON — Federal regulators should change how they record accidents involving trucks so that they don’t unfairly target drivers and carriers, according to comments submitted in response to the Federal Motor Carrier Safety Administration’s plans to alter and expand categories of crash types available to the industry for reporting accidents.

Since May 2020, FMCSA has accepted Requests for Data Review (RDRs) in its DataQs system to evaluate accident preventability by truck drivers in 16 crash types. By modifying them and adding four more categories, FMCSA wants to better identify nonpreventable accidents used in its Crash Preventability Determination Program (CPDP).

Most of those commenting on the changes support them, based on submissions filed two months after FMCSA issued a notice in April. But some, including the Owner-Operator Independent Drivers Association, say FMCSA should be taking stronger steps to protect truckers’ safety records.

Because the driver or carrier is responsible for getting a crash overturned based on the evidence, “the system forces drivers/carriers to step out of their roles as professional truckers and become crash investigators, evidence collectors, and perform multiple functions to upload necessary documentation for review,” stated OOIDA President Todd Spencer.

In addition, Spencer pointed out, a submitter to a crash review must currently wait over 90 days to receive a determination from FMCSA. “A non-preventable crash posted on a small motor carrier’s safety record lingering for 90 days or more can be crippling and could shut down an otherwise safe carrier,” he asserted.

“We believe transferring the burden to the agency to determine crash preventability will help keep safe, experienced motor carriers in business and will also reduce the current backlog of CPDP submissions. The implementation of the CPDP has clearly proven that motor carriers should not have to submit documentation and wait months on end in order to remove non-preventable crashes from their record.”

Bryan Griffith, a lawyer commenting on behalf of his law firm, Sanborn, Brandon, Duvall and Bobbitt, agrees that FMCSA is putting undue burdens on truckers and that carriers “are guilty until proven innocent,” based on FMCSA’s crash reporting process.

“When a state agency reports a crash, the safety points for that crash are added to the motor carrier’s CSA [compliance, safety, accountability] scores within a month, when the next snapshot is released,” Griffith wrote.

“The crash is presumed to be valid, regardless of the facts of the crash, and the burden is shifted to the motor carrier to prove the crash was one of the limited number of not preventable crashes that can be removed from the CSA scores through the CPDP program. This is contrary to the basic constitutional right to be innocent until proven guilty. The FMCSA does not require any proof, evidence, or a hearing before burdening the motor carrier with this ‘conviction,’ which burden remains for two full years.”

Griffith recommends that when a carrier submits a review request for a crash, the CSA points attached to it be removed from the safety calculation for that carrier and the public posting of it until the response for the crash is completed.

“This would remove the unfair burden on motor carriers from not preventable crashes caused by third parties,” he stated.

Werner: Allow video evidence without police reports

The four additional crash types involving a commercial motor vehicle (CMV) that FMCSA is proposing to include as a non-preventable are those in which the CMV is:

• Struck on the side by a motorist operating in the same direction.
• Struck because another motorist was entering the roadway from a private driveway or parking lot.
• Struck because another motorist lost control of a vehicle.
• Involved in any other type of crash in which a video demonstrates the sequence of events of the crash.

Werner Enterprises (NASDAQ: WERN) commented that it supports the new crash types, particularly those in which video evidence can be used.

“We ask that FMCSA consider accepting video footage directly from carriers as a source of accurate events leading up to an accident without also requiring the police report, which can take months to receive,” the company stated.

“This could allow FMCSA to clear the not-at-fault driver and remove a crash from the Safety Measurement System in a timely manner.”

Related articles:

• FMCSA changing how it identifies unsafe carriers
• FMCSA says insurers aren’t disclosing costs of truck crash claims
• FMCSA to expand crash preventability program

Click for more FreightWaves articles by John Gallagher.

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