OOIDA Sues to Block ‘De Facto’ Regulation It Says Enforcers Misuse to Idle Drivers
This story appears in the Jan. 14 print edition of Transport Topics.
The Owner-Operator Independent Drivers Association said it has filed a lawsuit seeking to overturn a “de facto” federal regulation that allows law-enforcement officers to make truckers stop driving based solely on their suspicion the driver is fatigued.
The regulation stems from the Commercial Vehicle Safety Alliance’s Out-of-Service Criteria, a manual that guides law-enforcement officers on when to put drivers or vehicles out of service.
The Federal Motor Carrier Safety Administration has endorsed CVSA’s standard, which directs officers to place a trucker out of service based on “reasonable, articulable suspicion” that he or she is too fatigued to drive, OOIDA said.
The standard states that a trucker should be placed out of service for 10 hours if the officer suspects the driver is fatigued.
OOIDA has asked the court to overturn the standard because federal agencies must follow a process that includes notice and an opportunity for the public to comment before regulations may take effect.
“If you can put a driver out of service for being fatigued based on some performance standard, then you need to at least identify what that performance standard is,” Jim Johnston, OOIDA’s president, told Transport Topics.
He added that FMCSA previously has refused to implement a performance standard based on the perception of a driver’s level of fatigue because it cannot be supported scientifically. Instead, following the hours-of-service rule is the only standard by which fatigue is supposed to be judged, Johnston said.
FMCSA spokesman Duane DeBruyne declined comment, other than saying the agency had received the lawsuit.
Stephen Keppler, CVSA’s executive director, also declined to comment. CVSA is not a party in the lawsuit.
OOIDA filed the lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit in December, after sending two letters to FMCSA during 2012 urging it to reject CVSA’s standard.
FMCSA Administrator Anne Ferro declined in October to reject the fatigue criterion. She said in a letter, “The CVSA criteria specifically state that motor carrier safety enforcement personnel are not required to comply with the out-of-service standards where state, provincial, territorial or federal law precludes such enforcement.”
The dispute over a performance-fatigue standard began in Minnesota, where the Minnesota State Patrol — the statewide police force — had a “fatigue checklist” and instructed officers to put drivers out of service if they met a certain number of criteria on the list, Johnston said.
OOIDA sued in federal court in 2009, saying the procedure violated the U.S. Constitution, but CVSA adopted a similar policy for its out-of-service criteria.
In its September 2011 decision, the court told the Minnesota State Patrol that an officer only could begin asking the checklist questions if he or she had a “reasonable, articulable suspicion” that the driver was too fatigued to drive.
The ruling also stated that the officer only could place the driver out of service if there was “probable cause” to show the driver was fatigued, such as a logbook that showed he had been driving beyond the allowable hours.
OOIDA asked CVSA to clarify its fatigue policy based on the decision. Instead, CVSA told officers to put drivers out of service based only on reasonable suspicion, not probable cause, Johnston said.
“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 wrote in its complaint in the D.C. court.
Johnston said he has not received any reports of truck drivers being put out of service because of the fatigue standard at issue.
