The Federal Motor Carrier Safety Administration (FMCSA) has plans to overhaul its DataQs system to accommodate deeper levels of appeal, according to a recent notice from the agency.
"Stakeholders from industry, CMV drivers, and the public have expressed concerns regarding the transparency and uniformity of addressing Requests for Data Review (RDRs), and specifically, RDR Reconsiderations. Stakeholders note that program offices do not have a uniform process for initial RDR reviews or for handling RDR Reconsiderations. They have also noted concern that RDR Reconsiderations are, in many instances, reviewed and decided by the same reviewer as the initial request. Users are calling on FMCSA to ensure an opportunity for an independent review, with consistently applied standards, for data correction requests."
We have long shared and expressed these same concerns, and we are generally happy to see the FMCSA working to address them. Check out our other article where we describe the DataQs process and provide tips for successful DataQs appeal.
As a result of these concerns, the FMCSA is proposing to develop and implement an "independent FMCSA appeal process" for RDRs, allowing users to request the FMCSA itself to review and rule on RDRs that had been previously denied by a state agency. According to its notice, "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. 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."
In essence, FMCSA is proposing an internal appeals board that would be available to review and rule on requests involving distinct legal or policy issues that have not gone the DataQs user's way initially. More specifically, "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. Additionally, 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 agency includes in its notice the following tables listing examples of acceptable and unacceptable uses of the proposed appeals process:
Examples of Possibly Acceptable DataQs Appeals
Examples of Unacceptable DataQs Appeals
In addition to this proposed appeals process, the agency also intends to work with its state law enforcement partners and local FMCSA offices to ensure that RDR reconsideration requests are reviewed by someone other than the person who conducted the initial RDR review.
The FMCSA is requesting public comments on this proposal. In particular, they are looking for input on the following questions:
Should FMCSA appeals be considered for RDRs that are not related to the interpretation or understanding of regulations, policy, or standards.
If so, what are some examples of RDRs that should be reviewed in an appeal?
As mentioned above, some States and program offices have created review boards and panels with processes for managing requests or referrals that occur during the initial RDR review or an RDR Reconsideration. How would the addition of the FMCSA appeal impact these review boards and their processes?
What burdens, if any, will States face when updating their source data when notified in DataQs of an FMCSA appeal result that requires a data change? If a State declined to change the violation in its data systems as a result of a decision in an FMCSA appeal, or was unable to, what would be the impact be of having FMCSA update the data in MCMIS directly while the State retained the original data in the its source systems?
One purpose of the FMCSA review is to provide clarity on significant regulatory or policy issues. FMCSA appeals may identify instances where this clarity could be helpful for future RDRs and RDR Reconsiderations. Are there recommended practices for disseminating appeal outcomes?
Are there any factors that FMCSA should consider relating to its proposed requirement for a separate reviewer, independent from the initial reviewer, for program office review for all RDR Reconsiderations?
This proposal comes on the heels of the agency's proposal to update both its Safety Measurement System (SMS) and its Safety Fitness Determinations (SFDs or safety ratings). We were critical of both proposals, primarily because of the lack of due process currently available to carriers through the DataQs system to effectively challenge erroneous violations. Check out our articles on these topics here and here.
The agency's DataQs proposal would, if implemented, help alleviate some of our concerns. However, we still question whether the proposed appeals system would effectively provide users the process they are due. For example, in our opinion, the DataQs appeals board should report directly to the agency's Chief Safety Officer and should allow users to submit detailed briefs and additional evidence to support their appeals. And if the appeals board rules against the user, we believe the user should have further appeal options via the federal court system. Whether the agency will build in these additional protections is yet to be seen.
We will continue following and reporting on this proposal. If you have any questions about how the proposal may impact your fleet, or for assistance filing comments, feel free to reach out. Comments can be submitted on regulations.gov in docket number FMCSA-2023-0190.
About Trucksafe Consulting, LLC: Trucksafe Consulting is a full-service DOT regulatory compliance consulting and training service. We help carriers develop, implement, and improve their safety programs, through personalized services, industry-leading training, and a library of educational content. Trucksafe also hosts a monthly live show on its various social media channels called Trucksafe LIVE! to discuss hot-button issues impacting highway transportation. Trucksafe is owned and operated by Brandon Wiseman and Jerad Childress, transportation attorneys who have assisted some of the nation’s leading fleets to develop and maintain cutting-edge safety programs. You can learn more about Trucksafe online at www.trucksafe.com and by following Trucksafe on LinkedIn, Facebook, Twitter, and YouTube.