OOSC Policy Statements

There is a potentially serious misconception respecting the status of CVSAs Out-of-Service Criteria (OOSC). Both CVSA and FMCSA have taken the position that the OOSC are not substantive regulations having the force and effect of law, but are simply enforcement tolerances to be applied once a violation of a substantive federal, state, provincial or territorial law or regulation takes place. A clear statement describing the legal status of the OOSC should be included in the published version of the criteria.

There is a widespread misconception within the trucking industry and among state enforcement officials as to status of the OOSC. One often hears people who should know better say that a driver has violated the out-of-service criteria.? Since the OOSC do not constitute substantive regulations, it is not possible for a driver to violate the criteria. The criteria do nothing more than provide guidance to enforcement personnel as to the appropriateness of an out-of-service order (OOSO) for violation of substantive provisions of properly enacted federal, state, provincial or territorial statutes or regulations.The OOSC establish standards as to when a particular violation is serious enough to warrant an OOSO. Thus, having brakes that are defective or not properly adjusted may constitute as violation of 49 C.F.R. §§393.44-50, but the severity of defects will determine whether an OOSO should be issued under technical criteria established in the Criteria under Part II, section 1, Brake System. The legal basis for enforcement action rests on violation of 49 C.F.R.§§ 44-50 or a properly adopted state, provincial or territorial equivalent. The penalty for the violation is determined by application of the enforcement tolerances established in the OOSC. Enforcement officers may not issue an OOS where there is no violation of a substantive regulation.As an example, the Policy Statement in Part I of the North American Standard Driver Out-of-Service Criteria is, at best, ambiguous on this subject. It requires enforcement personnel to follow the OOSC unless precluded by federal, state, provincial or territorial law. This language should be qualified to make it plain that the OOSC may not be applied unless it is shown affirmatively that there is a violation of a substantive regulation. CVSA has potential legal exposure if it does not provide proper guidance on this subject to its members and their enforcement personnel.

Revise the Policy Statements to include at a minimum the following language:The provisions of the North American Standard Out-of-Service Criteria are not substantive regulations but provide enforcement tolerances for application only where a violation of a substantive safety regulation duly adopted by federal, state, provincial or territorial governments takes place.