Commercial Vehicle Safety Alliance (CVSA) out of service criteria is fairly black and white and not open to interpretation, but inspectors are human and things – things like citing a violation incorrectly – do happen from time to time. In cases where a carrier believes an inspector has made a mistake, CVSA Inspection Specialist Jeremy Disbrow said it is important for fleets to contest them.
"Not defending yourself when you think you're right... inspectors make mistakes. I made mistakes when I was an inspector," he said. "If you think you're right and you think the inspector made a mistake, file a DataQ."
Motor carriers not familiar with the query process, Disbrow recommends a Google search for "DataQs, FMCSA," and reading through the process to understand how it works. "And if you think you're right, stick to your guns and DataQ it," he said, "and defend your company because it's important."
Timeliness is key to any DataQ. If a truck was cited during this week's Roadcheck campaign, and the fleet believes that citation was issued in error, a DataQ should be submitted as soon as possible. Brandon Wiseman, president of Trucksafe Consulting, recommended within 30 days. "Although the FMCSA's regulations technically allow carriers up to three years to challenge roadside inspection violations, and five years to challenge crashes through the DataQs system," he said, "your chances of succeeding on a DataQs appeal are much better, in my experience, if the appeal is filed within the first 30 days."
A DataQ filed with CVSA will be returned to the state that wrote the violation, and Disbrow said if a carrier disagrees with that response it can request FMCSA review it, "so at least you have another set of eyes looking at it to make a final determination."
However, Disbrow warns, just because a service technician can't replicate an issue doesn't mean the inspector made a mistake.
"How many times do you take your vehicle into the shop because you hear it clunking, or a noise, or whatever? You take it to the mechanic, and then what happens when the mechanic looks at it? It doesn't make the noise anymore, right,? As soon as you pull out of the driveway, it does start making it," he said. "So my first thought would be it was written for a reason. It could be something like a loose pigtail or something that's difficult to recreate, but maybe it happened during that inspection."
Disbrow suggested ensuring technicians perform rigorous due diligence to investigate the issue in search of the root cause. If that search comes up empty, "the next step in the process is to file a DataQ," he said. "If you believe it was written incorrectly, you believe it was in error, file the DataQ and let it go through that process."
Document, document, document
Filing the DataQ itself is simple: go to DataQ section of the FMCSA portal, sign up for an account and request for Data Review (RDR). The most complex but most important part of the query, Disbrow said, is the documentation that the fleet has exhausted all reasonable means to find and correct an issue.
"When you submit the DataQ, I would certainly submit any supporting documents you have that support it," he said, "the diagnostic reports from the mechanic, maintenance bills, any photos that were taken before the repairs were made, those are all very helpful to support your case in a DataQ."
DataQs aren't just for mechanical violations. Any case where a driver or fleet has been cited for a violation that it feels was wrong, or a regulation applied incorrectly, can be contested. Speeding, for example. However, Disbrow emphasized that documentation is always going to be the thing that helps determine the final ruling.
"Videos are always very helpful. You can submit videos, you can submit photos, you can submit anything that supports your case. The one caveat to that I just want to mention, though, is keep in mind that speeding violations can be difficult to prove sometimes based on videos, especially depending on what type of video system you have," he said. "You've probably seen areas where a speed limit may change three times in the span of a mile – it could go from 55, to 45, to 35, and back up to 55. So it all is going to come down to is that video capturing where that officer was sitting when they were running radar? Do they know where that officer was actually aiming their LIDAR at the time? Was it a quarter mile down the road, or a100 feet down the road? Those things can be difficult, but in general... if you have video footage, by all means, I recommend you submit that in DataQ when you feel it's appropriate."
See it through
Wiseman added that it's also important for the motor carrier to remain engaged with the DataQ process until it is formally closed, and to respond quickly to follow up requests.
"The FMCSA instructs those who are tasked with reviewing DataQs appeals to close out appeals if the reviewer sends a follow-up request and does not receive a response within 14 days," he said. "With that said, the FMCSA notes that appeals can be reopened if you subsequently produce the requested information or answer the follow-up questions, but it's better to respond within that initial 14-day time period."
Should a carrier win its DataQ, FMCSA notes the Safety Measurement System (SMS) and the Pre-Employment Screening Program (PSP) systems are updated monthly, and snapshot of the data is taken on the third or last Friday of each month. It takes approximately 10 days to process and validate the data. Once validated, the results are uploaded to the SMS and PSP websites.
