The attorney representing the Owner-Operator Independent Drivers Association in a lawsuit against the U.S. Department of Transportation cited a previous Eighth Circuit case to illustrate the harm in allowing guidelines to evolve into rules without being subjected to public scrutiny.
Paul Cullen Jr. of The Cullen Law Firm, Washington, D.C., referenced the Iowa League of Cities v. EPA case from 2013.
“As agencies expand on the often broad language of their enabling statutes by issuing layer upon layer of guidance documents and interpretive memoranda, formerly flexible strata may ossify into rulelike rigidity. An agency potentially can avoid judicial review through the tyranny of small decisions,” the Eighth Circuit wrote in the Iowa League of Cities case.
OOIDA alleges that the Federal Motor Carrier Safety Administration 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 said the FMCSA incorporated into the Code of Federal Regulations an Appendix A that the agency didn’t include in its notice of proposed rulemaking.
A panel of federal judges heard oral arguments from OOIDA and the DOT on Nov. 15 at the Eighth Circuit Court of Appeals in Omaha, Neb. Audio from the oral arguments can be found here.
Cullen said the FMCSA elevated its “so-called strictly advisory guidelines” into a stand-alone section of the Code of Federal Regulations without proposing the action or making it open to public comment.
“It evolved from the ‘tyranny of these small decisions’ into a rule,” Cullen said.
He added that this is what results “when the agency acts without the transparency and accountability of a rulemaking procedure. It makes all these changes and decisions without notice, comment, and accountability.”
Judge Bobby E. Shepherd questioned what impact removing the advisory guidance regarding sleep apnea from the Code of Federal Regulations would have.
“We will be better off because the court will have declared that these aren’t rules and they may not be used to disqualify drivers and medical examiners are not required to follow such guidelines,” Cullen said. “Guidelines are things that do not have a legal impact. These legal principles apply to all guidelines, although it’s especially true of sleep apnea because of the congressional mandate to proceed by rulemaking and because of all the problems that have come up in the experiences of our clients’ members.”
Many OOIDA members with a certain body mass index or large neck have told Land Line that their certified medical examiners have informed them that they were required to undergo a sleep study based on FMCSA regulations.
Sushma Soni, the attorney representing the DOT, said that moving the guidance into Appendix A was a “logical outgrowth” and something that should have been expected.
Soni also argued that sleep apnea is already covered in the regulation that states that a driver must have “no established medical history or clinical diagnosis of a respiratory dysfunction likely to interfere with his or her ability to control and drive a commercial motor vehicle safely.
“The regulation was always binding. If you had a medical history or clinical diagnosis of a respiratory dysfunction, including sleep apnea of a certain severity, you weren’t going to get a certificate.”
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.
Cullen said the actions of the FMCSA have put truck drivers at a disadvantage.
“The result is that truck drivers face unpredictable, expensive and unreliable medical examinations regarding sleep apnea,” Cullen said. “There is no concrete standard issued by the agency. There are bulletins, conferences, training and ‘use your own judgement,’ and these decisions can disqualify drivers from driving a truck.”
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