Appeal Process for Requests for Data Review

CourtFederal Motor Carrier Safety Administration,Transportation Department
Citation88 FR 63195
Published date14 September 2023
Record Number2023-19904
Federal Register, Volume 88 Issue 177 (Thursday, September 14, 2023)
[Federal Register Volume 88, Number 177 (Thursday, September 14, 2023)]
                [Pages 63195-63199]
                From the Federal Register Online via the Government Publishing Office []
                [FR Doc No: 2023-19904]
                Federal Motor Carrier Safety Administration
                [Docket No. FMCSA-2023-0190]
                Appeal Process for Requests for Data Review
                AGENCY: Federal Motor Carrier Safety Administration (FMCSA), U.S.
                Department of Transportation (DOT).
                ACTION: Notice; request for comments.
                SUMMARY: FMCSA proposes the development and implementation of a Federal
                appeals process for Requests for Data Review (RDRs) submitted to the
                Agency through its DataQs system. DataQs is the online system for motor
                carriers, commercial motor vehicle drivers and other interested parties
                to request and track a review of Federal and State crash and inspection
                data submitted to and stored by FMCSA that the requester believes is
                incomplete or incorrect. The proposed review process would provide
                users with an opportunity to have their requests reviewed by FMCSA
                after the request has been reviewed and denied after reconsideration by
                the State agency. FMCSA would include requirements for ensuring an
                independent review of all requests. The outcome of the FMCSA review
                would be deemed final. FMCSA requests public comments on the proposed
                DATES: Comments must be received on or before November 13, 2023.
                ADDRESSES: You may submit comments identified by docket number FMCSA-
                2023-0190 using any of the following methods:
                 Federal eRulemaking Portal: Go to Follow the online
                instructions for submitting comments.
                 Mail: Dockets Operations, U.S. DOT, 1200 New Jersey Avenue
                SE, West Building, Ground Floor, Washington, DC 20590-0001.
                 Hand Delivery or Courier: Dockets Operations, U.S. DOT,
                1200 New Jersey Avenue SE, West Building, Ground Floor, Washington, DC
                20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except
                Federal holidays. To be sure someone is there to help you, please call
                (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.
                 Fax: (202) 493-2251.
                FOR FURTHER INFORMATION CONTACT: Scott Valentine, Data Quality Program
                Manager, Analysis Division, Office of Analysis, Research and
                Technology, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590-
                0001, (202) 366-4869, [email protected]. If you have questions
                regarding viewing or submitting material to the docket, contact Dockets
                Operations, (202) 366-9826.
                 FMCSA organizes this notice as follows:
                I. Public Participation and Request for Comments
                 A. Submitting Comments
                 B. Viewing Comments and Documents
                 C. Privacy
                II. Abbreviations
                IV. Background
                 A. Overview of FMCSA Data Systems
                 B. DataQs
                 C. Current Process for Review of Requests in DataQs
                 D. The Call for an Independent Appeal Process
                V. Proposal for FMCSA Appeal Process
                 A. Proposed Process and Acceptance Criteria
                VI. Independent Review for RDR Reconsiderations
                VII. Comments Sought
                I. Public Participation and Request for Comments
                 FMCSA encourages you to participate by submitting comments and
                related materials.
                A. Submitting Comments
                 If you submit a comment, please include the docket number for this
                notice (FMCSA-2023-0190), indicate the specific section of this
                document to which your comment applies, and provide a reason for each
                suggestion or recommendation. You may submit your comments and material
                online or by fax,
                [[Page 63196]]
                mail, or hand delivery, but please use only one of these means. FMCSA
                recommends that you include your name and a mailing address, an email
                address, or a phone number in the body of your document so FMCSA can
                contact you if there are questions regarding your submission.
                 To submit your comment online, go to, click on this notice, click
                ``Comment,'' and type your comment into the text box on the following
                 If you submit your comments by mail or hand delivery, submit them
                in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
                copying and electronic filing.
                 FMCSA will consider all comments and material received during the
                comment period.
                Confidential Business Information (CBI)
                 CBI is commercial or financial information that is both customarily
                and actually treated as private by its owner. Under the Freedom of
                Information Act (FOIA), 5 United States Code (U.S.C.) 552, CBI is
                exempt from public disclosure. If your comments responsive to the
                notice contain commercial or financial information that is customarily
                treated as private, that you actually treat as private, and that is
                relevant or responsive to the notice, it is important that you clearly
                designate the submitted comments as CBI. Please mark each page of your
                submission that constitutes CBI as ``PROPIN'' to indicate it contains
                proprietary information. FMCSA will treat such marked submissions as
                confidential under the FOIA, and they will not be placed in the public
                docket of the notice. Submissions containing CBI should be sent to
                Brian Dahlin, Chief, Regulatory Evaluation Division, Office of Policy,
                FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590-0001 or via
                email at [email protected]. You do not need to send a duplicate
                hard copy of your electronic CBI submissions to FMCSA headquarters. Any
                comments FMCSA receives not specifically designated as CBI will be
                placed in the public docket for this notice.
                B. Viewing Comments and Documents
                 To view any documents mentioned as being available in the docket,
                go to and
                choose the document to review. To view comments, click this notice,
                then click ``Browse Comments.'' If you do not have access to the
                internet, you may view the docket online by visiting Dockets Operations
                on the ground floor of the DOT West Building, 1200 New Jersey Avenue
                SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday
                through Friday, except Federal holidays. To be sure someone is there to
                help you, please call (202) 366-9317 or (202) 366-9826 before visiting
                Dockets Operations.
                C. Privacy
                 In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
                public to better inform its regulatory process. DOT posts these
                comments, without edit, including any personal information the
                commenter provides, to As described in the System
                of Records Notices, DOT/ALL 14--Federal Docket Management System, which
                can be reviewed at, the comments are searchable by the
                name of the submitter.
                II. Abbreviations
                A&I Analysis and Information Online
                CBI Confidential Business Information
                CMV Commercial Motor Vehicle
                DOT Department of Transportation
                ELD Electronic Logging Device
                FMCSRs Federal Motor Carrier Regulations
                FOIA Freedom of Information Act
                FR Federal Register
                FY Fiscal Year
                HOS Hours of Service
                MCMIS Motor Carrier Management Information System
                MCSAP Motor Carrier Safety Assistance Program
                OMB Office of Management and Budget
                PSP Pre-Employment Screening Program
                RDR Request for Data Review
                SMS Safety Measurement System
                U.S.C. United States Code
                IV. Background
                A. Overview of FMCSA Data Systems
                 The foundation of FMCSA's data-driven safety activities is the
                Motor Carrier Management Information System (MCMIS). MCMIS is a
                computerized system in which FMCSA maintains a record of the safety
                performance of motor carriers and hazardous materials shippers that are
                subject to Federal Motor Carrier Safety Regulations (FMCSRs) and the
                Hazardous Materials Regulations. MCMIS contains crash, registration,
                inspection, investigation, and enforcement information. FMCSA is
                committed to ensuring the integrity of State and Federally reported
                safety data in MCMIS.
                 States collect and submit crash and inspection data, including
                violations documented during such inspections, into State data systems.
                The State data systems transmit the State-reported crash and inspection
                data into MCMIS.
                 The MCMIS data is propagated to other FMCSA data systems,
                including, but not limited to, the Pre-Employment Screening Program
                (PSP), the Safety Measurement System (SMS), and Analysis and
                Information Online (A&I). These data systems provide enforcement
                personnel, industry, and the public with information on the safety
                performance of motor carriers and drivers.
                B. DataQs
                 DataQs is the online system for drivers, motor carriers, Federal
                and State agencies, and others to request and track a review of MCMIS
                data they believe to be incomplete or incorrect. The DataQs system is
                available to the public at The DataQs
                system provides users an opportunity to seek and obtain correction of
                information maintained and disseminated by FMCSA. It enables all users
                to improve the accuracy of FMCSA's data-driven safety systems that help
                prevent crashes, injuries, and fatalities related to CMVs.
                 The Fiscal Year (FY) 2001 Consolidated Appropriations Act, section
                515, Public Law 106-554, required the Office of Management and Budget
                (OMB) to develop standards for Federal agency data. The OMB Guidelines
                required Federal agencies to take certain steps to ensure the quality,
                objectivity, utility, and integrity of data that the agencies publicly
                disseminate. The agencies were also required to provide
                ``administrative mechanisms'' for affected persons to seek and obtain
                correction of data.
                 The OMB Guidelines on agencies' required mechanisms for correction
                of data is stated, in relevant part, as follows:
                 3. To facilitate public review, agencies shall establish
                administrative mechanisms allowing affected persons to seek and
                obtain, where appropriate, timely correction of information
                maintained and disseminated by the agency that does not comply with
                OMB or agency guidelines. These administrative mechanisms shall be
                flexible, appropriate to the nature and timeliness of the
                disseminated information and incorporated into agency information
                resources management and administrative practices.
                 i. Agencies shall specify appropriate time periods for agency
                decisions on whether and how to correct the information. Agencies
                shall notify the affected persons of the corrections made.
                 ii. If the person who requested the correction does not agree
                with the agency's decision (including the corrective action, if
                any), the person may file for reconsideration within the agency. The
                agency shall establish an administrative appeal process to review
                the agency's initial decision, and specify
                [[Page 63197]]
                appropriate time limits in which to resolve such requests for
                 \1\ See Guidelines for Ensuring and Maximizing the Quality,
                Objectivity, Utility, and Integrity of Information Disseminated by
                Federal Agencies, 67 FR 8,452 (Feb. 22, 2002).
                FMCSA adopted DataQs in response to this legislation and the OMB
                 As noted, pursuant to 49 CFR 350.201(s), one condition for
                participation in the Motor Carrier Safety Assistance Program (MCSAP)
                \2\ is that a State establish a program to ensure that accurate and
                timely motor carrier safety data are collected and reported, and that
                the State participates in a national motor carrier safety data
                correction system prescribed by FMCSA. DataQs is that national motor
                carrier data correction system. Currently, States are responsible for
                reviewing and resolving all RDRs within DataQs that pertain to the
                safety data collected and reported in MCMIS by the State.
                 \2\ MCSAP is a Federal grant program that provides financial
                assistance to States to reduce the number and severity of crashes
                and hazardous materials incidents involving CMVs. The goal of MCSAP
                is to reduce CMV-involved crashes, fatalities, and injuries through
                consistent, uniform, and effective CMV safety programs. MCSAP is
                FMCSA's largest grant program that supports State and local law
                enforcement agencies to utilize over 12,000 enforcement officers to
                increase enforcement and safety activities nationwide.
                C. Current Process for Review of Requests in DataQs
                 DataQs system users may submit an RDR for the review of data within
                an FMCSA system and, if applicable, may provide supporting
                documentation. Based on the type of request, the RDR is routed to the
                appropriate DataQs program office. This program office can be a State
                agency, FMCSA field office, or FMCSA headquarters. Most RDRs are
                assigned to the State MCSAP agency for review since that agency most
                often uploaded the data to MCMIS.
                 The program office is responsible for investigating the request,
                communication with the requestor, if needed, and deciding whether a
                data correction is warranted. If a State agency is the assigned program
                office, and a data correction is warranted, the program office updates
                the record locally and uploads corrected data to MCMIS. Program offices
                are also responsible for updating DataQs with the review results and
                for notifying the requestor of the outcome. FMCSA provides State DataQs
                analysts with best practices and guidance for addressing RDRs in the
                DataQs Analyst Guide.\3\
                 \3\ See
                 After a decision is made on the initial review of the RDR, the
                requestor may request that the RDR be reviewed again (RDR
                Reconsideration). This RDR Reconsideration may be routed to the same
                program office as the initial review or follow a different process.
                State approaches for handling RDR Reconsideration requests vary. Some
                States address RDR Reconsideration requests within the program office.
                If the reviewer performing the RDR Reconsideration review is a State
                agency, they may consult with FMCSA for a recommendation. Some States
                have implemented review councils or committees. These groups are
                comprised of members with CMV experience from the State, and at times
                industry, that can perform an independent review of the request.
                Decisions on the RDR Reconsiderations are final.
                D. The Call for an Independent Appeal Process
                 Stakeholders from industry, CMV drivers, and the public have
                expressed concerns regarding the transparency and uniformity of
                addressing 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.
                V. Proposal for FMCSA Appeal Process
                A. Proposed Process and Acceptance Criteria
                 FMCSA proposes the development and implementation of an independent
                FMCSA appeal process for RDRs. 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.
                 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 proposed appeal process would not directly
                pertain to regulatory procedures external to DataQs, such as requests
                for safety rating upgrades, or appeals of registration rejections,
                although decisions from the appeals subsequently could be used by the
                affected party in such external procedures. If an RDR appeal is
                accepted by FMCSA, the determination made as a result of the appeal
                would be final.
                 Table 1 below contains examples of RDRs that might meet the
                proposed acceptance criteria for an FMCSA appeal.\4\
                 \4\ The examples cited in Tables 1 and 2 are for illustration
                purposes only. This notice does not reflect a formal decision by
                FMCSA on whether specific requests for Agency intervention, to the
                extent already submitted informally, will or will not be accepted
                for review on appeal.
                 Table 1--Example Requests Possibly Acceptable for FMCSA Appeal
                 Reason for FMCSA appeal
                 RDR type and scenario acceptance
                1.......... Crash--Not Reportable........ Interpretation--Crash
                 A CMV was involved in a crash Reportability Definition.
                 where the other driver left Determine whether the crash
                 the scene. The other driver met FMCSA's definition for
                 was apprehended a short time reportability of a crash.
                 later and the vehicle had to
                 be towed due to damage
                 sustained during the crash
                 with the CMV.
                [[Page 63198]]
                2.......... Inspection--Incorrect Interpretation--ELD and
                 Violation. Hours of Service (HOS)
                 The driver was using a Final Rule.
                 portable electronic logging Interpret the ELD and HOS
                 device (ELD), mounted to the Supporting Documents Final
                 center console. The driver Rule, Sec. 395.22 (g)
                 was cited for a violation ``Portable ELDs. If a
                 during an inspection because driver uses a portable ELD,
                 the ELD was not in view of the motor carrier shall
                 the driver while operating ensure that the ELD is
                 the CMV. The driver claims mounted in a fixed position
                 the violation is in error during the operation of the
                 because ``visible'' means commercial motor vehicle
                 not hidden and the driver and visible to the driver
                 only needs to access it when when the driver is seated
                 changing duty statuses. in the normal driving
                3.......... Inspection--Incorrect Interpretation--National
                 Violation. Emergency Declaration.
                 A driver was cited roadside Assess whether the State
                 with violating HOS correctly applied the
                 regulations after claiming waiver in response to the
                 to be operating under a declared hurricane
                 Regional Emergency emergency.
                 Declaration in support of
                 hurricane relief efforts.
                 The State contended the
                 commodity being transported
                 was not part of the relief
                4.......... Inspection--Citation Interpretation--Adjudicated
                 Associated with a Violation. Citations Policy.
                 The driver received a Determine the appropriate
                 speeding violation, and an outcome for a citation
                 associated citation, during dismissed with court costs
                 a traffic enforcement based on the MCMIS Changes
                 inspection. The citation was to Improve Uniformity in
                 dismissed in court and the the Treatment of Inspection
                 driver paid court costs. The Violation Data (Adjudicated
                 State contends that the Citations Policy).
                 court costs were punitive
                 and the equivalent of a
                 Table 2 below contains examples of RDRs that would not meet the
                proposed acceptance criteria for an FMCSA appeal.
                 Table 2--Example Requests Likely Not Accepted for FMCSA Appeal
                 Reason for FMCSA appeal
                 RDR type and scenario rejection
                1.......... Crash--Not Reportable........ Based on Insurance
                 A motor carrier provides Documents--Not Crash
                 insurance documents stating Reportability Definition.
                 that they were found ``not FMCSA crash data is based on
                 at fault'' in the crash and vehicle involvement, and
                 wants the crash removed as fault is not a
                 not reportable. consideration in the
                 reportability of a crash.
                2.......... Inspection--Incorrect Disputes Facts--Not Based on
                 Violation. ELD Regulations or Policy.
                 A CMV driver received a The request disputes facts
                 violation during an regarding whether the ELD
                 inspection for driving was working correctly at
                 during off-duty hours. The the time of the inspection.
                 submitter claims that the It also does not require an
                 ELD was malfunctioning, and interpretation of
                 the inspector was not regulation or policy.
                 provided accurate
                 information. The request did
                 not include supporting
                3.......... Inspection--Incorrect Opposing Account--Not Based
                 Violation. on Regulations.
                 The driver received a The request presents an
                 violation for following too opposing account of the
                 closely during a traffic inspection without concrete
                 enforcement inspection. evidence. It also does not
                 Submitter claims that the question the interpretation
                 driver was not in violation of the regulation.
                 of the traffic code. The
                 request did not include
                 supporting evidence.
                4.......... Inspection--Incorrect Leniency Request--Not Based
                 Violation. on HOS Regulations.
                 The driver received an HOS The requestor is seeking a
                 violation because the log data change based on
                 did not properly reflect purported corrective action
                 driving hours. The submitter and does not question the
                 states that the driver has interpretation of the
                 been retrained in regulation.
                 maintaining logs and is
                 requesting the violation be
                [[Page 63199]]
                 The outcome of the FMCSA appeal generally will include a
                clarification of the relevant regulation or policy as applied in such
                circumstances, and a determination whether correction of the data is
                warranted. When an FMCSA appeal results in a clarification that
                precipitates the need for a change to State-reported data, FMCSA
                proposes to notify the State via DataQs to ensure that the safety data
                is updated at the source. Some States may not be able to update their
                source data, and in these cases, FMCSA proposes to update the data in
                its MCMIS system. Changing data in MCMIS would not update State source
                systems, but the changes would flow to downstream Federal systems such
                as PSP, SMS, A&I, and the FMCSA Portal.
                VI. Independent Review for State RDR Reconsiderations
                 In addition to proposing the establishment of an FMCSA appeals
                process, the Agency wishes to address stakeholder concerns about
                independent reviews for all RDRs, not just those related to
                regulations, policy, or standards. As such, FMCSA proposes to issue new
                requirements for the review of RDR Reconsiderations to program offices.
                These proposed guidelines may include requirements to ensure and
                certify that each reconsideration request is addressed by a different
                reviewer than the person who performed the initial review of the RDR.
                VII. Comments Sought
                 FMCSA seeks comments on the proposals described above. FMCSA seeks
                comments on the following specific questions.
                 1. Should FMCSA appeals be considered for RDRs that are not related
                to the interpretation or understanding of regulations, policy, or
                 2. If so, what are some examples of RDRs that should be reviewed in
                an appeal?
                 3. 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?
                 4. 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?
                 a. 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
                 5. 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?
                 6. 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
                 Once comments are reviewed and any needed program changes are made,
                the Agency will respond to comments received to this notice and
                announce the start of the updated program in the Federal Register,
                under authority delegated in 49 CFR 1.87.
                Robin Hutcheson,
                [FR Doc. 2023-19904 Filed 9-13-23; 8:45 am]
                BILLING CODE 4910-EX-P

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