Senators push back against FMCSA's withdrawal of sleep apnea proposal

By Mark Schremmer, Land Line staff writer | 8/22/2017

Four Democratic Senators are urging the Department of Transportation to rethink its decision to not move forward with a rulemaking regarding the screening of obstructive sleep apnea for truck drivers and train operators.

Sens. Cory Booker, N.J.; Chuck Schumer, N.Y.; Bob Menendez, N.J.; and Kirsten Gillibrand, N.Y., signed a letter dated Aug. 21, citing their concerns to Transportation Secretary Elaine Chao.

The Federal Motor Carrier Safety Administration published in the Federal Register on Aug. 8 that the agency believes “current safety programs” are the appropriate avenues to address the issue. Previously, FMCSA released a notice that it had “determined there is not enough information available to support moving forward with a rulemaking action, and so the rulemaking will be withdrawn.”

However, the decision does not rule out the possibility of the FMCSA issuing a notice of proposed rulemaking for sleep apnea at a later time.

There has never been a specific FMCSA regulation regarding sleep apnea, but the agency does prohibit 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. The FMCSA appeared to be making its first steps toward a sleep apnea regulation in March 2016 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.

For now, the withdrawal means the FMCSA is maintaining the status quo when it comes to the way certified medical examiners address truck drivers who they believe are at a high risk of having obstructive sleep apnea. Currently, many truck drivers who have been diagnosed with sleep apnea are required to prove their use of a CPAP machine in order to receive a medical card.

The senators cited several crashes that were suspected of being linked to sleep apnea.

“As you know, obstructive sleep apnea is a serious medical condition that interrupts a person’s breathing while asleep, causing repeated awakening and subsequent severe fatigue,” the letter stated.

The National Transportation Safety Boards has determined sleep apnea to be the probable cause in 10 highway and rail crashes in the past 17 years, NTSB spokesman Christopher O’Neil confirmed. Seven of the crashes involved trains, and only three were on the highway. Of those, two involved tractor-trailers, and the other crash involved a motor coach.

“The NTSB is disappointed by the decisions of the FMCSA and FRA to withdraw the much-needed rulemaking on moderate-to-severe obstructive sleep apnea,” O’Neil said.

“Medical fitness and fatigue, two of the NTSB’s 10 Most Wanted List of Transportation Safety Improvements for 2017-18, are tied to obstructive sleep apnea. The need for this rulemaking is well documented in the safety recommendations issued to both the FMCSA and FRA, regarding obstructive sleep apnea.”

The letter stated that “the 2016 proposed rule consisted of a modest, common-sense approach to combating fatigue on our roads and rails: require testing for obstructive sleep apnea if a problematic symptom is observed.” However, the FMCSA’s proposal that was withdrawn was only an advanced notice that sought information about the prevalence of obstructive sleep apnea among truck drivers and train operators. A specific rulemaking regarding sleep apnea screening was never issued.

The FMCSA held three public listening sessions about the advanced notice 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.

The Owner-Operator Independent Drivers Association issued formal comments against a possible rulemaking, citing reports there is insufficient data to show a relationship between moderate-to-severe obstructive sleep apnea and increased crash risk. According to FMCSA data from 2011-14, no more than 1.8 percent of large truck fatality crashes involved driver fatigue.

“FMCSA should not jump to the immediate conclusion that obstructive sleep apnea is the primary cause of fatigue, nor that fatigue is the primary cause of crashes,” OOIDA wrote.

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