Notice2023-19904
Appeal Process for Requests for Data Review
Primary source
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Published
September 14, 2023
Issuing agencies
Transportation DepartmentFederal Motor Carrier Safety Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 177 (Thursday, September 14, 2023)</title>
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[Federal Register Volume 88, Number 177 (Thursday, September 14, 2023)]
[Notices]
[Pages 63195-63199]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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:
<bullet> Federal eRulemaking Portal: Go to <a href="https://www.regulations.gov/docket/FMCSA-2023-0190/document">https://www.regulations.gov/docket/FMCSA-2023-0190/document</a>. Follow the online
instructions for submitting comments.
<bullet> Mail: Dockets Operations, U.S. DOT, 1200 New Jersey Avenue
SE, West Building, Ground Floor, Washington, DC 20590-0001.
<bullet> 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.
<bullet> 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, <a href="/cdn-cgi/l/email-protection#8cdfefe3f8f8a2daede0e9e2f8e5e2e9cce8e3f8a2ebe3fa"><span class="__cf_email__" data-cfemail="99cafaf6ededb7cff8f5fcf7edf0f7fcd9fdf6edb7fef6ef">[email protected]</span></a>. 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 <a href="https://www.regulations.gov/docket/FMCSA-2023-0190/document">https://www.regulations.gov/docket/FMCSA-2023-0190/document</a>, 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 <a href="/cdn-cgi/l/email-protection#1371617a727d3d743d77727b7f7a7d53777c673d747c65"><span class="__cf_email__" data-cfemail="c9abbba0a8a7e7aee7ada8a1a5a0a789ada6bde7aea6bf">[email protected]</span></a>. 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 <a href="https://www.regulations.gov/docket/FMCSA-2023-0190/document">https://www.regulations.gov/docket/FMCSA-2023-0190/document</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a>. As described in the System
of Records Notices, DOT/ALL 14--Federal Docket Management System, which
can be reviewed at <a href="https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices">https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices</a>, 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 <a href="https://dataqs.fmcsa.dot.gov">https://dataqs.fmcsa.dot.gov</a>. 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
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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 <a href="https://dataqs.fmcsa.dot.gov/DataQs/Data/Guide/DataQs_Users_Guide_and_Best_Practices_Manual.pdf">https://dataqs.fmcsa.dot.gov/DataQs/Data/Guide/DataQs_Users_Guide_and_Best_Practices_Manual.pdf</a>.
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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.
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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.
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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
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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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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]
BILLING CODE 4910-EX-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.