By Jami Jones, managing editor
The Owner-Operator Independent Drivers Association filed a petition for review with the Court of Appeals for the DC Circuit on Dec. 21, 2012, asking the court to throw out a “de facto” final rule on fatigued driving.
The lawsuit stems from a letter signed by FMCSA Administrator Anne Ferro and sent in October 2012 to OOIDA President Jim Johnston regarding the Commercial Vehicle Safety Alliance’s out-of-service criteria on fatigue.
Johnston had pressed the agency in two letters written earlier in 2012 to step in and reject CVSA’s current out-of-service criteria for fatigue and for the agency to seek an immediate rescission of the amended out-of-service criteria.
Johnston called on FMCSA to inform state law enforcement agencies that drivers cannot be put out of service based on reasonable articulable suspicion, which is a lesser standard than probable cause. And, finally, Johnston requested that all individual driver fatigue out-of-service violations since April be removed from the Pre-Employment Screening Program database.
OOIDA contends that FMCSA’s response letter acknowledges that the North American Standard Out-of-Service Criteria are “necessarily predicated upon finding of an FMCSR violation.” The Association points out that for decades, fatigue has been addressed exclusively through hours-of-service and logbook regulations. FMCSA has not issued a rule that sanctions out-of-service orders for violations of Section 392.3.
For more than 70 years, federal agencies, starting with the ICC, have all determined that further study is needed before a performance-based out-of-service order for fatigue could be issued.
OOIDA contends that FMCSA’s departure from this longstanding approach to fatigue regulation constitutes an amended rule that cannot be implemented without notice and comment rulemaking.
FMCSA’s letter also declined to prohibit agencies from placing drivers out of service for fatigue and stated that no records containing fatigue out-of-service violations would be purged.
The letter did indicate that the agency officials will communicate the agency’s “position regarding the propriety of the fatigued driver criteria” to CVSA, but that position would not be discussed with OOIDA, which was a litigant against the Minnesota State Patrol and CVSA regarding fatigue enforcement and the out-of-service criteria at the time the letter was written.
OOIDA contends in the petition for review filed with the DC Circuit that the letter is an agency action that adopts a performance-based regulation regarding fatigue – without going through the rulemaking process.
That performance-based standard authorizes enforcement officials to place drivers out of service.
“That performance-based standard essentially allows officers to ignore the hours-of-service regulations and the logbook, and make an assumption or a determination that the driver is too fatigued to continue driving,” Johnston told “Land Line Now.”
Establishing a performance-based standard concerning fatigue is something FMCSA has long shied away from.
“The FMCSA and its predecessor agencies have repeatedly stated in various rulemaking proceedings that there is no adequate scientific or medical basis that would allow enforcement officers in the field to determine whether an individual driver is too fatigued to operate a vehicle safely,” OOIDA’s petition for review states. “Proposals to establish a performance-based criteria for fatigue detection and regulation have always been rejected in favor of further study.”
Running counter to that long-standing position, the FMCSA letter implements a new rule or new interpretation of the regulations and establishes a performance-based standard by approving the use of 392.3 as the basis for an out-of-service order – without notice or comment.
The FMCSA letter “constitutes a de facto amendment to its regulation without notice and comment rulemaking,” OOIDA’s petition states. LL