Uniformity of the out-of-service criteria and uniformity in their enforcement can best be achieved by formal federal adoption, says the Owner-Operator Independent Drivers Association. In response to the Advance Notice of Proposed Rulemaking on the out-of-service criteria, OOIDA filed comments Dec. 8 before the Federal Highway Administration, urging the Agency to enact a specific and consistent criteria into the Code of Federal Regulations.
The OOSC used by the enforcement community is developed and copyrighted by the Commercial Vehicle Safety Alliance (CVSA), an association of federal, state, local and provincial officials. The CVSA language, however, does not follow the FMCSR's restrictive standard, but authorizes out-of-service orders under a far more liberal standard. Since the CVSA's OOSC may be applied more liberally than the federal standard, OOIDA points out in its comments that the OOSC are actually more stringent than authorized under the federal law.
In its comments, the association ranks four important legal principles that require that any out-of-service criteria be adopted into the FMCSRs. These include (1) the principle requiring that rules acting as binding norms must be declared in accordance with the Administrative Procedure Act; (2) Administrative due process that requires fair notice to the regulated community before a rule is enforced; (3) the principles that apply to warrantless searches in pervasively regulated industries and (4) constitutional principles forbidding the equipment being seized with no compensation.
"Shutting trucks down and placing the driver out of service cannot simply be an interpretive call by an inspector using ‘guidelines.' It places the inspecting officer in the role of witness, accuser, judge, jury and executioner – and this holds very real constitutional concerns."
OOIDA's comments point out that the criteria are used to place drivers and vehicles out of service. By definition, they are used to restrict a driver's movement and detain property. In their present form, CVSA's OOSC take the form of binding norms which inspecting officers are commanded to follow. Under these circumstances, says OOIDA, the out-of-service criteria must be publicized under notice and comment rulemaking provisions of the Administrative Procedure Act. Declaring a vehicle or driver out of service deprives the driver of important personal and property interests. OOIDA's position is that imposition of out-of-service status must therefore be accompanied by due process of law.
"The out-of-service criteria represent the practical legal standard under which vehicles and drivers are placed out of service," said OOIDA President Jim Johnston. "We are therefore urging FHWA to adopt very specific out-of-service criteria as part of the FMCSR. Shutting trucks down and placing the drivers out of service cannot simply be an interpretive call by an inspector using ‘guidelines.' It places the inspecting officer in the role of witness, accuser, judge, jury and executioner – and this holds very real constitutional concerns."
OOIDA believes the codification of the OOSC will promote several beneficial policy objections, including the all-important predictability of the law. "Just as inspectors need specific guidelines to help them understand how to properly enforce federal regulations and when to order drivers and CMVs out of service," says Johnston, "drivers also should have the benefit of knowing the out-of-service criteria in advance and understanding what is expected of them. This predictability of the law promotes compliance with it."
In summarizing OOIDA's comments on the Advance Notice of Proposed Rulemaking, Johnston emphasized that the U.S. Code mandates specifically that the Secretary of Transportation prescribe regulations on government standards for inspection of commercial motor vehicles. "The Department of Transportation's failure to enact regulations places the out-of-service criteria in regulatory limbo," he says. LL