The Owner-Operator Independent Drivers Association (OOIDA) has filed a petition for review with the Court of Appeals for the DC Circuit. In it, they are asking the court to throw out a “de facto” final rule on fatigued driving.
The lawsuit was brought about by 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 petitioned 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 wanted 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. Also, 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 their request 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.
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