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Court punts on fatigue enforcement challenge

The U.S. Court of Appeals for the District of Columbia Circuit passed on hearing a legal challenge of the FMCSA’s “de facto” fatigue enforcement – essentially leaving enforcement at the status quo.

The Owner-Operator Independent Drivers Association brought the legal challenge over the Department of Transportation’s enforcement policies on driver fatigue in December of 2012.

The Association brought the challenge because the DOT has long admitted there’s not a rock-solid method in determining fatigue. In fact, in 2000 the DOT determined that direct measurement of individual driver fatigue by roadside law enforcement was neither technically feasible nor operationally practical.

Since that time the Federal Motor Carrier Safety Administration continues to address the problem of driver fatigue exclusively through hours-of-service regulations. The agency has been silent on the question of the ability of state and federal enforcement officers to discern and measure fatigue on an individual driver basis, according to OOIDA. The Association points out that no regulations have been implemented that would authorize enforcement action against drivers other than the hours-of-service regulations.

The U.S. Court of Appeals for the D.C. Circuit found that FMCSA had not issued a rule, regulation or final order on fatigue and therefore the court had no subject matter jurisdiction to address OOIDA’s grievances against that agency.

“All responsible individuals should support constructive efforts to remove fatigued drivers from the road,” said Jim Johnston, president of OOIDA. “But to do so, the agency must establish standards. FMCSA has not adopted any such standards.

“Instead, FMCSA has turned a blind eye to enforcement actions where states like Minnesota have put drivers out-of-service for fatigue if they had TVs or Playboy magazines in their sleeper berths.”

Recently, OOIDA, the Commercial Vehicle Safety Alliance and the National Safety Council wrote a joint letter to FMCSA to express concerns over the lack of a federal standard defining excessive driver fatigue. CVSA highlighted that the state enforcement officers were unclear as to the level of fatigue that would justify enforcement action on their part. OOIDA pointed out that drivers did not know how to conform their conduct to a clear legal standard. NSC joined in the plea for the agency to address this problem.

“The court’s pass on hearing this important issue certainly will not be the last word on the subject,” Johnston said.

The court’s inaction on the opportunity to address fatigue means that the issue remains open to challenge in the future, according to OOIDA’s litigation counsel, The Cullen Law Firm.

“OOIDA will continue to promote constructive solutions to the fatigue problem, but nothing constructive can happen until FMCSA overcomes the problem identified years ago when DOT found that performance based fatigue regulation was neither ‘technically feasible’ nor ‘operationally practical,’” Johnston said.

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