OOIDA Looking for Court Review

Federal Motor Carrier Safety Administration, or FMCSA, statutes have always required a log book and hours-of-service standard to determine out-of-service criteria for truck drivers. FMCSA has always shied away from subjective determination of out-of-service conditions in favor of more concrete, quantifiable evidence.

However, the Commercial Vehicle Safety Alliance, or CVSA, recently obtained a ruling that would enable subjective enforcement of out-of-service conditions according to an officer's opinion that the condition exists. The FMSCA stated that it would not prohibit agencies from placing a driver out of service nor will it remove existing out-of-service actions from the database for the pre-employment screening program. FMCSA did indicate, however, that it would convey directly to CVSA the FMCSA's position on the propriety of the out-of-service amendment but that OOIDA would not be party to the communication due to its pending litigation against CVSA.

On December 21st in the Court of Appeals for the District of Columbia Circuit, Owner-Operator Independent Drivers Association, or OOIDA, filed a lawsuit against the Minnesota State Patrol and CVSA in an attempt to immediately rescind the decision obtained by CVSA. OOIDA's president, Jim Johnston, has written letters to the FMSCA in an attempt to get voluntary overturn of the decision but the entreaties were unsuccessful. Johnston also appealed to FMSCA to overturn current out-of-service actions by law enforcement officials when the actions were a result of the new ruling. That appeal was also unsuccessful.

OOIDA's lawsuit avers that both the FMCSA and its predecessor agencies have repeatedly stated that officers in the field lack the resources to determine whether a driver is too fatigued to continue operating a rig. OOIDA asserts that law enforcement officers should not be able to put a driver out of service using reasonable articulable suspicion, which is the lesser form of probable cause. Under the new ruling, an officer can disregard the log book and the regulations for hours of service and arbitrarily place an operator out of service.

OOIDA also argued that the current performance-based standard has been adopted without the usual processes applied to rule making and that the amendment to the current regulation is, in effect, a de facto amendment which has been adopted without notice or proper procedure.

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