Full enforcement of the electronic logging device mandate that went into effect April 1 will no doubt result in a great many fleets wanting to challenge incorrect citations and inspection reports. Filing DataQ challenges is something John Seidl, a former commercial vehicle enforcement official turned transportation and compliance consultant with Integrated Risk Solutions, does frequently.
One of the biggest areas of confusion at roadside inspections, Seidl says, is enforcement officials trying to hold automatic onboard recording devices (AOBRDs) to the same standards as the new ELD rule. AOBRDs are allowed to be used instead of ELDs under a grandfather clause up until December 2019, if fleets were using them before the 2017 ELD deadline. And the latest guidance allows a motor carrier that installed and required its drivers to use an AOBRD before Dec. 18, 2017, to install and use a new ELD-capable device that runs compliant AOBRD software until the December 2019 full compliance deadline.
The Federal Motor Carrier Safety Administration’s frequently asked questions on ELDs states that if you are operating a grandfathered AOBRD, “authorized safety officials will enforce … the requirements in 49 CFR 395.15 for ‘grandfathered’ AOBRDs,” while ELDs are to be enforced under the ELD regulations.
However, Seidl says, “there are many inspectors that are writing AOBRD devices up for ELD-related violations, thus prompting me to do a bazillion DataQs.”
One example? Data transfer. An AOBRD is not required to be able to transfer data to enforcement officials at roadside like ELDs are. “It doesn’t have the programming embedded in it, nor was it required to so; it is impossible to make an AOBRD transfer a data file…. You can’t make an AOBRD transfer a file that doesn’t exist.”
Even if it’s an ELD, FMCSA’s FAQs say the ELD will not be deemed non-compliant if the data cannot be sent electronically, if the driver can show either a printout or the actual ELD display of their RODS.
You can file Data Q challenges online at https://dataqs.fmcsa.dot.gov. Look for the Analyst Guide on this page for a how-to publication on Data Qs. But here are a few real-world tips from Seidl.
1. Know the commercial vehicle regulations
Before you can challenge a citation, you need to understand the regulations. You probably have a copy of the green federal motor carrier safety regulations, Seidl says. But you’ll also want a copy of the Commercial Vehicle Safety Alliance’s out-of-service conditions guide, updated every April 1 – something he says many fleet safety people don’t even realize exists. “This lists every out of service condition. Every inspector has it, and that’s what determines whether you get put out of service or not.”
In fact, he says, he has won challenges not to the violation itself, but to being put out of service. “Say you are in violation – you screwed up. You agree you were in violation But you don’t agree you should have been placed out of service. Then you would use the CVSA out-of-service book.”
You can order a hard copy of the out-of-service guide or buy a downloadable PDF at www.cvsa.org; click on the “Store” tab.
Other regulations you need to have access to are the hazardous materials ones if you haul hazmat, and applicable state regulations.
2. Provide supporting documentation
One of the common mistakes Siedl sees in DataQ challenges is failing to provide adequate supporting documentation.
“You can’t just write it up without having evidence,” he says. “You shouldn’t be disputing violations without evidence to the contrary. You can’t just write up a summary and hope it goes well.”
Part of that evidence, he says, can simply be citing the appropriate sections of the regulations (back to our first tip above), if you prove that why they wrote you up is contrary to the regulation.
“Always get a copy of the actual driver vehicle examination report,” Seidl says. Don’t just get a screen shot. On the inspection report are additional notes that won’t be on the online summary, which may help you direct your challenge. Your driver should give you the copy of the inspection report, but if they don’t, Seidl says, you can request a copy through the Data Q website.
3. Challenge citations in court
“Many companies don’t know this, but if you get a citation and you take it to court, and they dismiss the ticket, that state is required to remove it from your CSA scores,” Seidl says. “If you get a citation and they reduce it to a lesser charge, the state is required to turn that violation in CSA into a 1-point CSA effect.”
So one key way to manage your CSA scores through Data Qs is to go to court. This is why in many cases, a ticket is actually better than a warning – because you can’t fight a warning in court.
“Are enforcement officials writing more or less tickets? They’re writing less, because if you fight it, you get rid of it,” Seidl says.