NASTC Responds to FMCSA DATAQ Request for Comments on Appeal Process

Federal Motor Carrier Safety Administration

1200 New Jersey Avenue, S.E.

Washington, D.C. 20590

RE:  Request for Comments on Appeal Process: Requests for Data Review (Docket No. FMCSA-2023-0190)

To whom it may concern:

The National Association of Small Trucking Companies (NASTC), which represents some 15,000 small-business commercial motor carriers, is pleased to comment on the Request for Comments on Appeal Process: Requests for Data Review (Docket No. FMCSA-2023-0190).

NASTC is a member-based organization whose member companies range from a single power unit to more than 100 power units, the average being 12 power units.  These companies for the most part operate in the long-haul, over-the-road, full-truckload, for-hire sector of interstate trucking.  NASTC members come from the largest segment of America’s long-haul trucking, small motor carrier businesses.  Safety is a top priority for NASTC members.

NASTC has served our sector of the trucking industry for more than 30 years, providing a range of services that facilitate our members’ business operations and help them remain competitive.

We appreciate that FMCSA plans to develop and implement an appeals process for requests for data review (RDRs) made through the DataQs system.  We have heard predominately negative things from motor carriers who have dealt with DataQ or have pursued agency corrective action concerning data that reflect negatively in carrier safety records.  As the agency intends to limit significantly appeals of RDRs to “requests that pertain to significant matters of legal interpretation or implementation of enforcement policies or regulations . . . (and exclude) requests involving mere factual dispute between parties . . . ,” the benefit of such a new review process would be very narrow.

To convey the deep-seated discontent with DataQs and SMS, and why a review process should be much more encompassing, we begin with discussion of problems from which DataQs suffer at present.  These will establish why a broad appellate process for timely correction is vital.

Many in our industry view DataQ procedures for challenging a carrier’s safety history in FMCSA’s records as lacking fairness and due process.  FMCSA presumes a charged violation to be valid pending the outcome.  This presumption ignores the legal fact that recordable accidents are not evidence of carrier fault or causation, which is the essential element bearing upon safety, fairness, and due process.  The agency jumps to a conclusion before usual proceedings involving evidentiary and procedural protections are impartially carried out.

FMCSA publishes “evidence”—much of it hearsay—of accidents, roadside inspections, scale house violations, and traffic infractions before adjudication occurs and well before adjudication is resolved.  Alleged infractions and warnings are reported by states and local law enforcement as the truck’s fault—effectively reversing the burden of proof under DataQ’s arbitrary standards.  The motor carrier is afforded no right of judicial appeal.  Such a “guilty until proven innocent” policy coupled with denial of recourse to the judiciary runs opposite of anyone’s and everyone’s civil rights.  This clearly violates fairness and due process norms.

FMCSA is not equipped or qualified to reconstruct accidents or make probative findings in catastrophic crashes.  Yet FMCSA attempts its own adjudication of every accident in which it decides “preventability” or “causation.”  This practice undercuts and subverts the court system’s role.  An administrative agency has no business arrogating judicial power. 

Presently, carriers seeking to challenge moving violations must first adjudicate them at the state or local level, which might require court appearances hundreds of miles from the driver’s domicile and may take months to resolve.  Assuming a favorable resolution, the carrier then must expend additional time and resources in DataQ to try to reverse the violation within FMCSA’s MCMIS database.  This situation has the effect of a policy of “guilty even after proven innocent.”  As the regulatory process lags acquittal by a court of law, the delay in expunging from SMS and MCMIS the undeserved black eye on the carrier’s record unfairly continues to inflict reputational and economic harm on safe motor carriers.

“The use of DataQs is particularly unfair where speed warnings and other infractions are recorded for which there is no judicial appeal and publication of a single violation for a small carrier can profile it as a perceived ‘bad actor’ on the FMCSA’s score card.”1 “Publication of ‘reportable’ accidents—particularly when a fatality is involved—has devastating effects on the branded carrier.  Because of the agency’s pernicious decision to publish this data for use by shippers and insurers, the reportable accident makes the carrier appear too toxic to use or insure.”2  This is clearly unfair and unjust.

It is important to reiterate that the DataQ of any accident has no legal standing as an adjudication.  It lacks the taking or recording of evidence or the building of a record.  It affords no discovery and generally is not appealable.  Unless the infraction led to a fine appealable in court, there is no third-party adjudication.  Although some states have implemented an appeals process that somewhat addresses the conflict-of-interest issue, they are not required to do so.  In general, state enforcement personnel act as prosecutor, judge, and jury in DataQ, and FMCSA accepts the appeal decision without question.

Thus, rather than a neutral party reviewing appeals, DataQ challenges are processed by the same state agency–potentially even the same law enforcement officer or his or her colleagues–that issued the violation.  Predictably, they usually circle the wagons.  Conflicts of interest are clearly present when DataQ challenges are reviewed by the law enforcement officer who issued an initial citation.  Separating functions to rectify this situation should include a federal requirement that state and local law enforcement establish a third-party review to which DataQ appeals go for a determination.

An example will illustrate how the agency’s policies and practices, including with DataQs, deprives regulated parties of due process, fairness, and full adjudication (i.e., the rule of law).  In 2019, state law enforcement cited a truck driver for a small motor carrier for a ‘false log,’ placed him out of service, and fined him.  The driver had duly pulled into an inspection station to find safe parking, relying on FMCSA’s latest personal conveyance guidance, having noticed that the first parking place at a rest stop had a two-hour limit on parking.  The state inspection officer was ignorant of FMCSA’s year-old guidance providing use of personal conveyance for exactly this kind of circumstance.  The driver had traveled less than five miles and 15 minutes beyond his 14-hour rule limit.  The driver and carrier suffered for six months under high Compliance Safety Accountability (CSA) scores which, thanks to the practice of immediately adding unadjudicated incidents to FMCSA’s database, dramatically raised the carrier’s CSA score due to this single incident.  The state law enforcement agency had reported the citation, which FMCSA entered into its MCMIS system immediately, prior to adjudication and final resolution.

Therefore, NASTC urges FMCSA to provide an appeals process through the DataQ system that affords impartial, fair, timely review of all relevant cases, including factual disputes with any party or authority.  The DataQ review process constitutes an administrative branch proceeding; thus, to ensure due process, the agency should affirm aggrieved motor carriers’ right to judicial review of an adverse DataQ decision or denial of a requested review.

Further, the rule should require states to establish adjudication by independent third parties and to disallow involvement in adjudication by any state or local body or other party with actual or appearance of conflict of interest, such as review by the issuing officer or his or her supervisor.  FMCSA should require states to provide for taking or recording of evidence, the building of a record, the right to discovery, and the right to appeal any and all determinations in a matter.  FMCSA should adopt and afford the same fairness and due process protections and division of functions.

To ensure independence and fairness, the review process should also grant motor carriers the right to appeal a state or local level DataQ decision, including one by a third party, to a federal administrative law judge (ALJ) separate from FMCSA, such as at the Surface Transportation Board (STB).  Separating adjudication from FMCSA to a different agency is important because FMCSA, state agencies, and local law enforcement collaborate closely through the Commercial Vehicle Safety Alliance (CVSA), FMCSA advisory committees, and in other ways.  At a minimum, such close ties give an appearance of conflict of interest.  That appearance of potential partiality in treatment of regulated parties can only be mitigated by providing for a disinterested adjudicator, such as an STB ALJ and, of course, a court of law. Coupled with judicial review, fairness and due process would be satisfactorily incorporated into DataQs with these recommended features.

Sincerely,

David Owen
President, NASTC

1Motor Carrier Regulatory Reform Coalition (MCRR) comments on “Request for information: Improving and/or Reforming Regulatory Enforcement and Adjudication,” Docket No.

OMB-2019-0006, filed March 13, 2020, p. 11.

2 MCCR comments on “Regulatory Review,” Docket No. DOT-OST-2017-0069, filed November. 16, 2017, p. 29.