FMCSA's withdrawal of proposal halts pursuit of new apnea regulation

By Mark Schremmer, Land Line staff writer | 7/25/2017

While the Federal Motor Carrier Safety Administration withdrew its advanced notice of proposed rulemaking on obstructive sleep apnea, many truck drivers are wondering how the decision affects them in the medical certification process.

FMCSA recently released a report that said the agency “has determined there is not enough information available to support moving forward with a rulemaking action and so the rulemaking will be withdrawn.”

“FMCSA’s sleep apnea rulemaking was in a very early stage; however, we were concerned that the agency was going to put the cart before the horse,” said Mike Matousek, the Owner-Operator Independent Drivers Association’s director of government affairs. “While nothing was actually proposed by FMCSA, any new regulations would have the potential to needlessly affect the physical qualification of drivers. We are certainly relieved to see the agency drop the pursuit of further regulation.”

OOIDA continues to evaluate what potential opportunities the withdrawal presents on addressing the current guidance and predatory practices involving sleep apnea.

The FMCSA didn’t provide any further explanation on the withdrawal, and attempts by Land Line to receive clarification from the agency were unsuccessful.

However, truck drivers who have been diagnosed with obstructive sleep apnea shouldn’t assume that the FMCSA’s decision not to move forward with a proposed rule means they can toss their CPAP machines in the garbage. It also doesn’t mean that a certified medical examiner won’t request that a truck driver undergo a sleep study.

There has never been a specific FMCSA regulation regarding sleep apnea, but the agency does prevent any person with a medical history or clinical diagnosis of any condition likely to interfere with their ability to drive safely from being medically qualified to operate a commercial motor vehicle in interstate commerce.

Without a formal regulation regarding sleep apnea, the FMCSA has relied on guidance. In an FMCSA bulletin from 2015, the agency said it “does not require that these drivers be considered unfit to continue their driving careers, only that the medical examiner make a determination whether they need to be evaluated and, if warranted, demonstrate they are managing their obstructive sleep apnea to reduce the risk of drowsy driving.”

OOIDA filed a lawsuit against the FMCSA in January, claiming that the FMCSA’s rule on medical examiner’s certification integration added sleep apnea regulatory language that bypassed the rulemaking process.

“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.”

In March 2016, the FMCSA appeared to be making its first steps toward a sleep apnea regulation as it joined with the Federal Railroad Administration for an advanced notice of proposed rulemaking that sought data and information concerning the prevalence of moderate-to-severe obstructive sleep apnea among individuals occupying safety-sensitive positions in highway and rail transportation.

The FMCSA held three public listening sessions on the matter and received comments from truck drivers, fleet owners, and medical professionals. A survey released by the American Transportation Research Institute found that 53 percent of drivers pay out-of-pocket for sleep studies.

OOIDA issued formal comments against a possible rulemaking, citing reports that show there is insufficient data to show a relationship between moderate-to-severe obstructive sleep apnea and increased crash risk.

“OOIDA opposes any regulations requiring obstructive sleep apnea screening until FMCSA identifies obstructive sleep apnea as the cause of a not-insignificant number of truck crashes,” OOIDA wrote in its comments signed by President Jim Johnston. “FMCSA should not jump to the immediate conclusion that obstructive sleep apnea is the primary cause of fatigue and that fatigue is the primary cause of crashes.”

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