OOSC, Part I, Item 5. Sickness

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

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 (OOSO). 49 C.F.R. § 383.5 defines OOSO?s 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 sickness (49 C.F.R. § 392.3) is not listed in this definition of an OOSO, and, by necessary implication, such OOSOs are not specifically authorized by regulation. Further, we are aware of no state that has adopted a substantive regulation on sickness. 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 OOSO order is so uncertain. Further, CVSA?s current provision on sickness (quoted above) has serious problems. This language is not a criterion at all and sets forth no standard against which an enforcement officer can determine when a driver ?should not continue the trip.?At present there is no clear definition for ill. Within 49 CFR 392.3 there is a consistent theme of using the word impaired. [Merriam Webster definition of impaired ?being in a less than perfect condition]. In the name of uniformity and consistency to ensure all regulatory and enforcement personnel are taking the same action, a clear and concise definition of ill/sickness would need to be incorporated into the FMCSRs.FMCSA, NTSB and other federal agencies have spent tens of millions of dollars studying ill and fatigued drivers but have not provided a clear definition of same. There is no standard of proof for enforcement personnel throughout North America to use and the definition of ill/sickness to one enforcement agent may be totally different from that of another.It seems if a driver is in such a condition as to not be able to safely drive a commercial vehicle, due to illness, the first course of action would be to seek medical attention for that driver.

To remove from the North American Standard Out-of Service Criteria #5 under Part I ? ?Sickness? until such time as an OOSO is authorized in the FMCSRs and FMCSA establishes a clear and concise definition of ?ill? that is reflected in 49 CFR 392.3.