OOIDA lawsuit: FMCSA bypassed legal process in medical certification rule

By Mark Schremmer, Land Line staff writer | Thursday, January 19, 2017

The Owner-Operator Independent Drivers Association claims the Federal Motor Carrier Safety Administration’s rule on medical examiner’s certification integration added regulations that bypassed the rulemaking process.

OOIDA filed its opening brief in the case on Wednesday, Jan. 18, in the U.S. Court of Appeals for the Eighth Circuit.

FMCSA issued a final rule in April 2015 that required certified medical examiners, who perform physicals on drivers of commercial motor vehicles, to use a new medical form. The agency announced it was creating procedures by which medical examiners would submit the results of driver medical examinations to the states so that a driver’s medial certification would be combined with the commercial driver’s license.

However, OOIDA argues that the FMCSA added other regulations that violated the law by not going through the rulemaking process.

“In its final rule, however, FMCSA also incorporated into the Code of Federal Regulations a detailed list of specific medical criteria as Appendix A to 49 CFR Part 391 that FMCSA did not propose in its notice of proposed rulemaking,” OOIDA wrote in its legal brief. “Those medical standards listed sleep apnea as one of the areas for medical examiners to review in deciding whether to medically certify drivers.

“The agency did not demonstrate a connection between these medical criteria and driver safety. The agency did not ask for public comments on Appendix A. Nor did the agency evaluate the burden and cost of evaluating and testing for these medical criteria in a driver examination.”

In October 2013, President Barack Obama signed into law a bill requiring the FMCSA to use a formal rulemaking process before requiring sleep apnea testing for commercial truck drivers.

“By incorporating the medical condition of sleep disorders, including obstructive sleep apnea, into both the Medical Examination Report and in Appendix A Medical Criteria, the agency exceeded its authority under Public Law 113-45, which requires the agency to perform a rulemaking before incorporating any sleep disorder standard into the medical certification process,” OOIDA wrote.

OOIDA petitioned the FMCSA to reconsider the final rule on May 22, 2015. The Association argued that the new medical criteria, including sleep apnea, must be established through a proper rulemaking process. OOIDA also provided examples of its own members’ problems with medical examiners interpreting the medical certification inconsistently. OOIDA said that drivers were being medically disqualified based on doctors’ beliefs that the sleep apnea guidelines are mandatory.

However, the FMCSA denied OOIDA’s petition for reconsideration on Sept. 9, 2016, saying that the final rule did not change the underlying medical examination criteria and that the public had adequate notice and an opportunity to comment.

“FMCSA violated the Administrative Procedure Act’s notice and comment requirements when it adopted Appendix A without first publishing it in its notice of proposed rulemaking on May 10, 2013,” OOIDA argued. “FMCSA violated the APA and the Motor Carrier Act for both the Medical Examination Report expanded health history and Appendix A with it provided no reasonable basis or purpose establishing those medical criteria for how a driver was to be examined and evaluated for medical certification. The agency also violated the Motor Carrier Act when it failed to consider the costs of implementing into the medical certification process the medical criteria listed in both the Medical Examination Report and Appendix A.”

Copyright © OOIDA

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