[Federal Register Volume 88, Number 177 (Thursday, September 14, 2023)]
[Notices]
[Pages 63195-63199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19904]


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DEPARTMENT OF TRANSPORTATION

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.

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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 
process.

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 https://www.regulations.gov/docket/FMCSA-2023-0190/document. 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.

SUPPLEMENTARY INFORMATION: 
    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 https://www.regulations.gov/docket/FMCSA-2023-0190/document, click on this notice, click 
``Comment,'' and type your comment into the text box on the following 
screen.
    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 https://www.regulations.gov/docket/FMCSA-2023-0190/document 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 www.regulations.gov. As described in the System 
of Records Notices, DOT/ALL 14--Federal Docket Management System, which 
can be reviewed at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices, 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 https://dataqs.fmcsa.dot.gov. 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 
reconsideration.\1\
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    \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 
Guidelines.
    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.
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    \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.
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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\
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    \3\ See https://dataqs.fmcsa.dot.gov/DataQs/Data/Guide/DataQs_Users_Guide_and_Best_Practices_Manual.pdf.
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    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\
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    \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
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                                               Reason for FMCSA appeal
                 RDR type and scenario               acceptance
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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
                                             position.''
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
              efforts.
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
              conviction.
------------------------------------------------------------------------

    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
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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
              evidence.
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
              removed.
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[[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 
standards.
    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 
systems?
    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 
Reconsiderations?
    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,
Administrator.
[FR Doc. 2023-19904 Filed 9-13-23; 8:45 am]
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