The Federal Motor Carrier Safety Administration is proposing something many fleet safety and compliance managers have been wanting for some time: a federal appeals process for Requests for Data Review, or RDRs, submitted to the agency through its DataQs system.
DataQs is the online system for motor carriers, commercial drivers and others to request a review of federal and state crash and inspection data on the basis it is incomplete or incorrect.
The proposed review process would give users an opportunity to have their requests reviewed by FMCSA after the request has been reviewed and denied after reconsideration by the state agency involved.
Critics have complained that program offices don’t have a uniform process for initial RDR reviews or for handling RDR Reconsiderations.
They have also pointed out thata RDR Reconsiderations are, in many instances, reviewed and decided by the same reviewer as the initial request. Users have asked FMCSA to ensure an opportunity for an independent review, with consistently applied standards, for data correction requests.
The outcome of the FMCSA review would be deemed final.
In addition, FMCSA proposes to issue new requirements for the review of RDR Reconsiderations to program offices. These proposed guidelines may include requirements to ensure that each reconsideration request is addressed by a different reviewer than the person who performed the initial review of the RDR.
The Proposed DataQ Appeals Process
FMCSA proposes the development and implementation of an independent FMCSA appeal process for RDRs. The agency expects to use the DataQs system to accept, track, and respond to requests for FMCSA appeal review.
For this process, FMCSA proposes that DataQs users would be able to initiate a request for an FMCSA appeal, but only after the RDR has been denied through both the initial review and the RDR Reconsideration processes.
The agency proposes to limit RDRs accepted for FMCSA appeal to requests that pertain to “significant matters of legal interpretation or implementation of enforcement policies or regulations.” Requests involving mere factual dispute between parties would not ordinarily be accepted for review through the FMCSA appeal process.
All information and documents provided to FMCSA would be contained in the DataQs RDR itself. Neither the requestor nor the program office may submit new facts or evidence at the time of this third and final appeal request or during its review.
The outcome of the FMCSA appeal generally will include a clarification of the relevant regulation or policy as applied in such circumstances, and a determination whether correction of the data is warranted.
When an FMCSA appeal results in a clarification that precipitates the need for a change to state-reported data, FMCSA proposes to notify the state via DataQs to ensure that the safety data is updated at the source.
Some states may not be able to update their source data, and in these cases, FMCSA proposes to update the data in its MCMIS system. Changing data in MCMIS would not update state source systems, but the changes would flow to downstream federal systems such the Safety Measurement System used in CSA to score carrier safety.
Why a DataQ Review Appeal Process is Needed
An early comment on the proposal comes from Lewis Britton, a retired DOT safety investigator who now works in the safety division of a motor carrier. When he worked for a state agency as a compliance review investigator, he saw how “many times, troopers and others either took DATAQ challenges as a personal attack, or they laughed off the entire process.”
In his motor carrer safety department role, he cites an example of a DataQ review that he said truly bewildered him.
“I provided the regulatory guidance and all necessary information the analyst would need to understand the challenge and make the correct decision. The challenge was in Oklahoma and the first RDR was rejected. When I appealed the decision, I later found that the appeal went back to the same person who first rejected."
While the state sent in the accident as a DOT-recordable accident, he said, the investigating trooper left the scene before either of the trucks. Neither truck had to be towed and there were no injuries or fatalities, meaning it was not DOT-recordable.
“The analyst would not accept any evidence other than that the trooper would have to amend his report and show that neither was towed. The trooper clearly said that he did not know if either truck was towed. So, I was being asked to disprove a negative. This is an example of how the system is biased when the final decision lies with the originating officer or that officer’s agency.”
What Type of Reviews Would be Considered?
In addition to limtng these reviews to "significant matters of legal interpretation or implementation of enforcement policies or regulations," the proposal says that RDRs submitted to the Crash Preventability Determination Program and petitions to the Drug and Alcohol Clearinghouse would not be eligible for an FMCSA appeal.
The proposed appeal process would not directly pertain to regulatory procedures external to DataQs, such as requests for safety rating upgrades, or appeals of registration rejections, although decisions from the appeals subsequently could be used by the affected party in such external procedures.
Examples of Likely Cases for Appeal
The FMCSA’s proposal notice offered some examples of RDRs that might meet the proposed acceptance criteria for an FMCSA appeal:
Crash—Not Reportable: A commercial vehicle was involved in a crash where the other driver left the scene. The other driver was apprehended a short time later and the vehicle had to be towed due to damage sustained during the crash with the CMV.
Inspection—Incorrect Violation: The driver was using a portable electronic logging device (ELD), mounted to the center console. The driver was cited for a violation during an inspection because the ELD was not in view of the driver while operating the CMV. The driver claims the violation is in error because “visible” means not hidden and the driver only needs to access it when changing duty statuses.
Inspection—Incorrect Violation: A driver was cited roadside with violating hours-of-servuce regulations after claiming to be operating under a Regional Emergency Declaration in support of hurricane relief efforts. The state contended the commodity being transported was not part of the relief efforts.
Inspection—Citation Associated with a Violation: The driver received a speeding violation, and an associated citation, during a traffic enforcement inspection. The citation was dismissed in court and the driver paid court costs. The state contends that the court costs were punitive and the equivalent of a conviction.
Not Likely to be Accepted for Appeal
Crash—Not Reportable A motor carrier provides insurance documents stating that they were found “not at fault” in the crash and wants the crash removed as not reportable.
Inspection—Incorrect Violation: A driver received a violation during an inspection for driving during off-duty hours. The submitter claims that the ELD was malfunctioning, and the inspector was not provided accurate information. The request did not include supporting evidence.
Inspection—Incorrect Violation: The driver received a violation for following too closely during a traffic enforcement inspection. Submitter claims that the driver was not in violation of the traffic code. The request did not include supporting evidence.
Inspection—Incorrect Violation: The driver received an HOS violation because the log did not properly reflect driving hours. The submitter states that the driver has been retrained in maintaining logs and is requesting the violation be removed.
Comments must be received on or before Nov. 13, 2023. You can view the whole proposal, including a list of questions the agency is asking, and comment at https://www.regulations.gov/docket/FMCSA-2023-0190/document.