The FMCSA's DataQs system is the means by which motor carriers appeal erroneous violations attributed to them during roadside inspections or safety audits. The system has gotten a bad rap over the years--mostly deserved--due to its various shortcomings, but it is a valuable tool that motor carriers should be taking advantage of. Over the years, I've had the opportunity to help carriers file hundreds of DataQs appeals, and through that experience, I've learned what works and what doesn't work. What follows is a list of five tips for prevailing on your DataQs appeal.
1. Choose your DataQs battles wisely
There are essentially three types of carriers: (1) those employing the "blanket approach" to DataQs and challenging every violation attributed to them through roadside inspections whether justified or not; (2) those that utilize the DataQs system but only to challenge clearly erroneous violations; and (3) those that don't use the system at all. I've typically recommended that carriers adopt an approach that falls somewhere in-between the first and second group of carriers.
I've never been a proponent of the "blanket approach," as I think it cripples the carrier's credibility and lessens the chances that it will prevail in a justifiable appeal. Plus, it's really just a waste of time and resources to appeal violations against which you have no real defense. That time would, in my opinion, be much better spent working with drivers to address the issues that led to the violations so that they don't reoccur.
With that said, I also tend to think that most carriers could be a little more aggressive in their approach to DataQs. What I mean is that, rather than just filing DataQs in cases where the officer or investigator was clearly wrong, I recommend utilizing the system even in more questionable cases. There's really no downside to doing so, and if you are able to present a compelling case, then you only stand to benefit.
Ultimately, I recommend that carriers use good discretion in deciding which violations to appeal. Factors to consider include:
How long ago was the violation assessed? The more recent the violation, the better your chance of success.
Did the officer/investigator make a legal or factual error? Legal errors are easier to establish, assuming the regulations support your contention. Factual errors are tougher to address unless you have concrete evidence that the officer was wrong.
The amount and quality of evidence you have to support your argument. In my experience, if it's just your word against the officer's, your chances of prevailing are virtually nil.
2. File DataQs within 30 days of the subject inspection/audit
Although the FMCSA's regulations technically allow carriers up to 3 years to challenge roadside inspection violations and 5 years to challenge crashes through the DataQs system, your chances of succeeding on a DataQs appeal are much better, in my experience, if the appeal is filed within the first 30 days. Obviously, memories fade over time, as does any evidence that you may have to support your appeal. Thus, the sooner that you file the appeal after the subject inspection or audit, the more likely it is that you will have access to what you need to prevail on your arguments.
Also, keep in mind that DataQs, even though they are filed through an FMCSA system, are forwarded to and reviewed by the state agency that issued the violation(s) in the first place. For example, if the violation you are challenging was assessed by the Indiana State Police, the DataQs appeal that you file will be forwarded to and ruled on by the Indiana State Police. And in my experience, the person reviewing your appeal will almost always consult with the officer that issued the violation before ruling on your appeal. If you wait for more than a month to file your appeal, it's likely that the officer won't recall the inspection and more likely that he/she will just stick to their guns.
3. Understand and choose the correct type of request for data review
Carriers can submit various Requests for Data Review (RDR) types within the DataQs system. Choosing the right RDR for your situation is crucial to succeeding with your appeal. What follows is a list and brief description of each violation- and crash-based RDR type. Note that there are also RDRs specific to registration and household goods issues.
Crash--not mine (assigned to wrong motor carrier). Use to assert that a crash was assigned to the wrong motor carrier (e.g., officer listed wrong USDOT number, or vehicle had been leased to another carrier).
Crash--not an FMCSA-reportable crash. Used to argue that crash did not meet the criteria for DOT-recordable crashes (i.e., fatality, injury requiring medical attention away from the scene, disabling damage requiring a vehicle to be towed). Check out this article to learn what accidents are recordable.
Crash--not my fault (not preventable). Used to challenge preventability of accident that meets the eligibility criteria of the FMCSA's Crash Preventability Demonstration Program.
Crash--duplicate (same crash listed multiple times). Used in situations where the same crash has been uploaded more than once to a carrier's account.
Crash--crash record missing from carrier report. Used to notify FMCSA that a report from a DOT-recordable crash is not uploaded to the system.
Crash--crash report contains incorrect information. Used if a crash record contains incorrect information (e.g., incorrect fatality count).
Inspection--never received a copy or lost the report. Used to request a copy of a roadside inspection report.
Inspection--citation with associated violation. Used if a particular violation from a roadside inspection has been adjudicated through a state or local court, and the requester can provide evidence that the associated citation has been dismissed or changed to another count.
Inspection--violation is incorrect, listed multiple times, or missing IEP/shipper information. Used to contest violations that are erroneous. This is the most common type of RDR.
Inspection--not mine (assigned to the wrong motor carrier). Used if a violation has been assigned to a wrong motor carrier (e.g., officer listed wrong USDOT number or vehicle had been leased to another carrier).
Inspection--missing from carrier or driver report. Used to notify FMCSA that system does not display roadside inspection violation information.
Inspection--duplicate (same inspection listed multiple times). Used in situations where the same inspection and/or violation is listed multiple times.
Inspection--inspection report contains incorrect information/other. Used in situations where an inspection report contains inaccurate information other than violation data (e.g., incorrect driver or vehicle information).
DOT Audit/Investigation--Safety Audit. Used to contest violations assessed during safety audit (e.g., focused audit).
DOT Audit/Investigation--Compliance Review. Used to contest violations assessed during full compliance review. Note that if challenge is to the assignment of a safety rating, the carrier may have other appeal options. See our related article on upgrading a safety rating.
DOT Audit/Investigation--CSA Investigation (included serious violations). Used to contest violations assessed during a CSA investigation (e.g., targeted investigation due to CSA scores).
DOT Audit/Investigation--fine as a result of a notice of claim or notice of violation. Used to contest violations that led to the assessment of civil penalties.
4. Attach as much evidence as you can find
Of all the steps addressed in this article, this one likely has the greatest influence on your chances of success. If you are challenging a violation assessed during a roadside inspection or audit, you must submit evidence to support your argument, even if that evidence is just a signed statement from your driver, for example. Put differently, if your appeal amounts to nothing more than your word against the officer's/investigator's, there's a 99% chance that it will be denied. That's why it is crucial that you upload supporting evidence with your appeal.
So what makes for good evidence? Really, it's anything that lends support to your version of the facts or law. For example, let's say your driver was assessed a violation for failing to maintain his/her lane on a highway. If the driver's vehicle was equipped with a video event recorder that captured the moments leading up to the roadside inspection, you would want to upload a copy of that video to establish that the driver did, in fact, maintain his/her lane, if that's the case. If, in the context of a safety audit, you are assessed a violation for failing to conduct a post-accident drug/alcohol test on an accident that didn't necessitate such a test, you may want to upload a copy of the accident report to demonstrate that the accident was not of the variety that requires post-accident testing.
The tougher prospect is a situation where you have no physical or documentary evidence to support your position. For example, let's say your driver is assessed a violation for failing to have his/her ELD instruction manual in the cab during the inspection. Unless the driver's vehicle was equipped with an inward-facing camera that captured video of the driver presenting that manual to the officer during the inspection, you likely don't have any evidence that conclusively proves the manual was, in fact, in the cab during the inspection. In that case, it's going to be your driver's word against the officer's and it's going to be tough to prevail. Regardless, if you are intent on appealing it, I would recommend that, at the very least, you have your driver sign a statement indicating that he/she did, in fact, have the manual and made it available to the officer during the inspection.
Suffice to say, the more evidence you have to back your appeal, the better your chance at prevailing.
5. Respond promptly to any follow-up requests
Occasionally, the individual reviewing your DataQs appeal may have follow-up questions or requests for additional information. If so, they will ask the question or request the information through the DataQs system, which will then generate an email with that request to the person who filed the appeal. It is important that you timely respond to any such request or question by logging back into the DataQs system and submitting a response. The FMCSA instructs those who are tasked with reviewing DataQs appeals to "close out" appeals if the reviewer sends a follow-up request and does not receive a response within 14 days. With that said, the FMCSA notes that appeals can be reopened if you subsequently produce the requested information or answer the follow-up questions, but it's better to respond within that initial 14-day time period.
DataQs appeals are one of the few ways that motor carriers can improve their CSA/SMS scores, so it's important that you take advantage of the system when possible. However, filing appeals well after the inspection dates or without any supporting evidence is almost certainly a waste of time. That said, if you are sure to follow these five simple steps, you will significantly increase your chances of success.
If you need help filing DataQs appeals, be sure to contact us. And if you want more in-depth training on the FMCSA's DataQs system or other enforcement tools like CSA/SMS, please check out our DOT Enforcement Master Class offered through Trucksafe Academy!