SPECIAL REPORT: OOIDA takes 'de facto' fatigue regulation to court

By Jami Jones, Land Line managing editor | 12/26/2012

The Owner-Operator Independent Drivers Association filed a petition for review with the Court of Appeals for the DC Circuit on Dec. 21, 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 on Oct. 23 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 on June 12 and Sept. 12 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 the agency 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.

FMCSA’s letter declined to prohibit agencies from placing drivers out of service for fatigue and stated 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 on Dec. 21 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.

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