OMAHA, Neb. – An attorney for the Owner-Operator Independent Drivers Association told a panel of federal judges that the Federal Motor Carrier Safety Administration acted “without accountability” by bypassing the rulemaking process in order to regulate obstructive sleep apnea.
Paul Cullen Jr. presented OOIDA’s case against the U.S. Department of Transportation to the Eighth Circuit Court of Appeals during oral arguments on Wednesday, Nov. 15 at the Roman L. Hruska Federal Courthouse in Omaha, Neb.
OOIDA’s lawsuit, filed in April, alleged that the FMCSA slipped regulations regarding sleep apnea into a 2015 final rule that required the agency’s certified medical examiners to use a new medical form. OOIDA argued that the FMCSA incorporated into the Code of Federal Regulations an Appendix A that the agency didn’t include in its notice of proposed rulemaking.
Appendix A was a detailed list of medical criteria that included obstructive sleep apnea as one of the areas for medical examiners to review when deciding whether to medically certify a driver.
Doing so, Cullen said the action wasn’t subject to public comment or a cost-benefit analysis.
“What is the problem with this going forward without the rulemaking process,” Cullen asked. “It makes OOIDA members and other truck drivers face expensive and unpredictable standards. These decisions can disqualify drivers from operating a truck.”
In October 2013, President Barack Obama signed a law that required the FMCSA to go through the formal rulemaking process and analyze the potential cost of sleep apnea requirements rather than simply issuing guidance to physicians, drivers, and motor carriers. The legislation was supported by OOIDA.
The DOT argues that the medical certification final rule didn’t expand any examination or testing requirements and that the addition of sleep apnea into the advisory guidance started in 2000.
“There wasn’t any substantive change,” Sushma Soni, the attorney representing the DOT told the court.
Many of the judges’ questions focused on what the impact would be if Appendix A was removed from the regulation.
The DOT argued there would be no impact. However, OOIDA contended that it would mean medical examiners wouldn’t be able to disqualify drivers for things that aren’t rules.
“For the last 17 years, petitioners have witnessed and experienced the driver medical certification process become more complicated, burdensome and expensive,” OOIDA wrote in its brief. “This has occurred as FMCSA has gradually revised and expanded the scope of its so-called ‘advisory’ medical criteria and then incorporated those criteria in the instruction and training of medical examiners.
“FMCSA has been able to advance this agenda without either exposing those requirements to the public comment and transparency requirements under the Administrative Procedures Act, or performing a cost-benefit analysis of them under the Motor Carrier Act. Now that FMCSA has incorporated those criteria as a stand-alone section of the Code of Federal Regulations, it is time that they be held accountable to the public for their promulgation.”
There is no time frame as to when the judges will make a decision. However, a ruling isn’t expected for at least several months.
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