OOSC, Part I, Item 6. Fatigue

Whether CVSA should continue to publish an out-of-service criteria for fatigue until the FMCSRs specifically authorize such orders and establish criteria for measuring excessive fatigue.

Regulation 49 C.F.R. § 392.3 was never intended to be used as an enforcement tool against drivers and the FMCSRs do not identify it as a basis for an out-of-service order (OOSC). 49 C.F.R. § 383.5 defines OOSCs to include violations of Sections 386.72, 392.5, 395.13, 396.9 or compatible laws, or the North American Uniform Out-of-Service Criteria. The FMCSR addressing fatigue (49 C.F.R. § 392.3) is not listed in this definition for an OOS, and, by necessary implication, such OOSs are not specifically authorized by regulation. Further, we are aware of no state that has adopted a substantive regulation on fatigue where fatigue is defined and an enforcement plan detailed for uniform application. Finally, CVSA?s OOSC is merely an enforcement guideline, not a substantive regulation that could serve as an independent basis for an enforcement action. CVSA should not be promoting an out-of-service criteria where the legal basis for an OOS is so uncertain. Further, CVSAs current provision on fatigue (quoted above) has serious problems. The language does not establish a criterion at all and sets forth no standard against which a law enforcement officer can determine when a driver should not continue the trip. The current fatigue provision requires a ten hour duration for OOS for fatigue. This necessarily implies that the degree of driver impairment is known when the OOS is issued, and that those ten hours are sufficient to eliminate impairment. An unchallenged expert opinion introduced by OOIDA during the Minnesota litigation established that there is no medically or clinically approved standard for measuring fatigue. CVSA has no scientific evidence supporting the imposition that a ten hour off-duty sanction is sufficient to eliminate fatigue impairment. Further, there is no requirement to supervise the driver to see that he gets rest during this ten hour period and there is no requirement to re-inspect the driver at the end of the ten hour period to see whether the impairment has been eliminated. The ten hour OOS is strictly penal and not remedial.

Remove fatigue from the North American Standard Out-of Service Criteria until such time as an OOS is authorized in the FMCSRs and FMCSA establishes a clear and concise definition of fatigue. Additionally, a clinically sound method of fatigue detection and measurement would need to be available for law enforcement officers in the field.