The Federal Motor Carrier Safety Administration on Thursday will publish a notice proposing the development and implementation of a federal appeals process for Requests for Data Review (RDRs) submitted to the agency through its DataQs system.
The proposal has been in the works for quite some time. In the long wake of Overdrive's early-2021 series examining significant due process issues in the system, an FMCSA data-quality manager said in Spring of 2022 that FMCSA was seriously considering revamping the DataQs review process to a system "where FMCSA was going to take more ownership of the process."
With its notice publishing Thursday, FMCSA finally proposes an appeal process for third-stage DataQs reviews -- or requests for change to a violation, crash or other information that have been rejected at least twice already, whether by state or federal officials, with some limitations.
Currently, states are responsible for reviewing and resolving all RDRs within DataQs that pertain to the safety data collected and reported in the Motor Carrier Management Information System (MCMIS) by the state. The current system allows carriers to use the DataQs system to request a review of data within an FMCSA system and, if applicable, provide supporting documentation. Based on the type of request, the review is routed to the appropriate DataQs program office. That office varies considerably -- it can be a state agency, an FMCSA field office, or FMCSA headquarters. Most DataQs reviews are assigned to the appropriate state agency for review, since that agency most often uploaded the data to MCMIS.
After a decision is made on the initial review, that decision can be appealed -- known as an "RDR Reconsideration," which could be routed to the same program office as the initial review or follow a different process in some instances, FMCSA noted, depending on the review type. Stakeholders from trucking have had growing concerns with the existing DataQs system for several years, and FMCSA said that has included calls for an independent appeal process for reviews.
[Related: DataQs reform: A 10% violation error rate should not be acceptable]
With its notice publishing September 14, FMCSA proposes that DataQs users would be able to initiate a request for an FMCSA appeal, but only after both the initial review and the RDR Reconsideration reviews have been denied. All information and documents provided to FMCSA would be contained in the DataQs review record itself. Neither the party requesting the review nor the program office would be allowed to submit new facts or evidence at the time of what would essentially be a third and final appeal request.
FMCSA proposes to limit reviews accepted for FMCSA appeal “to requests that pertain to significant matters of legal interpretation or implementation of enforcement policies or regulations.”
The agency noted that “requests involving mere factual dispute between parties would not ordinarily be accepted for review through the FMCSA appeal process.” Additionally, reviews 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 (requests for safety rating upgrades, or appeals of registration rejections), but FMCSA said decisions from the appeals subsequently could be used by the affected party in such external procedures.
If FMCSA accepts an appeal, the determination made as a result of the appeal would be final, under the terms of this proposal.
[Related: Red tape, deaf ears: Criticism mounts of DataQs crash- and inspection-info review system]
FMCSA provided this chart in its proposal as an example of possible DataQs appeal requests that it may accept under its proposed new federal review system, and why.
The agency also proposes to issue new requirements for second-tier reviews to state and federal program offices. The proposed guidelines may include requirements to ensure and certify that each reconsideration request is addressed by a different reviewer than the person who conducted the initial review.
Beginning Sept. 14, FMCSA will accept comments on its proposal for 60 days. Comments can be filed here through Nov. 13.
FMCSA is asking commenters to respond to the following specific questions, many of them directed to state agencies but some holding import for working owner-operators and carriers. The full list follows here.
- Should FMCSA appeals be considered for RDRs (reviews) 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?
- 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 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?
[Related: How to mount an effective DataQs challenge]
