DataQs need due process
During a Small Business Administration hearing, OOIDA provided examples of problems its members have encountered with DataQ reviews.
The Owner-Operator Independent Drivers Association fought for truck drivers’ rights to due process during the U.S. Small Business Administration’s Ombudsman’s Regulatory Fairness Hearing on Aug. 19 in Washington, D.C.
Jay Grimes, OOIDA’s director of federal affairs, spoke on behalf of the Association at the hearing. His comments centered around DataQ, which is a process that allows motor carriers, truck drivers and others to request a review of FMCSA-issued data, such as violations and inspection reports.
Grimes said that it’s often for that information to be incomplete or incorrect.
“Roughly 45,000 DataQs are filed annually, with about 65% of them resulting in a correction or reversal,” Grimes said. “However, in many cases, the DataQ review process is not objective. A determination is made by the same person or agency who issued the violation, which creates an inherent conflict.
“In other words, very few law enforcement officers are willing to admit they made a mistake. This is problematic because violations remain on a driver’s or carrier’s safety record and can negatively impact the employability of a driver and insurance costs for small motor carriers, among other consequences. Additionally, the review process can take months to complete, which discourages OOIDA members from ever filing an initial appeal.”
Grimes provided some examples of issues OOIDA members have encountered.
In one instance, Grimes said an OOIDA member had her identity stolen by another truck driver, which resulted in five inspections and numerous violations. OOIDA filed a DataQ on behalf of the member, and no correction was made. After OOIDA challenged the violations, it took more than four months for the violations to be removed from public view.
“The driver suffered serious financial hardship because of this delay since she couldn’t obtain insurance and therefore couldn’t drive until the correction was made,” Grimes said.
Another example was an OOIDA member who Grimes said was cited by a state trooper for violation of a federal regulation “that does not even exist.”
“After filing a DataQ to appeal this obviously incorrect citation, the appeal was denied by the very same trooper who issued the citation and the violation was transmitted to FMCSA,” Grimes said. “Only after filing a lawsuit and spending thousands of dollars in legal fees was the driver able to have the violation removed from his record. As part of this lawsuit, the court ruled that the state had violated the driver’s right to due process.”
In order to fix the problem, Grimes told the Small Business Administration that FMCSA should ensure that the DataQ provides fairness and due process to all parties involved.
“OOIDA’s solution would require that each state establish a five-member review board appointed by the governor and made up of two representatives of a state commercial motor vehicle enforcement agency, one representative of a state department of transportation, one representative of a motor carrier, and one representative of a driver,” Grimes said. “This board would be required to meet at least quarterly to consider a secondary review of original decisions to close a DataQ request.”
It is an issue that should be a priority to correct, Grimes said.
“There are violations that drivers and motor carriers know are wrong. Period. It should not take thousands of dollars and months of waiting to reach a decision that would be obvious to independent and objective observers. Truck drivers and small-business motor carriers should not be denied due process simply because of their occupation.” LL