In a supplemental citation filed on Sept. 8 to the U.S. Court of Appeals for the Eighth Circuit, the Owner-Operator Independent Drivers Association said the Federal Motor Carrier Safety Administration’s explanation for why it didn’t go forward with any rulemaking regarding obstructive sleep apnea serves as proof the agency bypassed the rulemaking process with its regulation of the sleep disorder.
“The withdrawal demonstrates that the respondents would prefer to continue to address this issue through the unaccountable and nontransparent use of ‘guidelines’ or ‘advisory criteria,’” OOIDA’s attorney, Paul D. Cullen Jr., wrote.
In April, OOIDA filed a lawsuit against the U.S. Department of Transportation that alleged the FMCSA bypassed the rulemaking process by slipping regulations regarding obstructive 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 a detailed list of specific medical criteria as Appendix A that the agency didn’t include in its notice of proposed rulemaking. That criteria included obstructive sleep apnea as one of the areas for medical examiners to review when deciding whether or not to medically certify a driver. A law was signed in October 2013 that required the FMCSA to go through the formal rulemaking process before mandating sleep apnea testing for commercial drivers.
“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.”
FMCSA contends 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.
In March 2016, FMCSA took its first steps toward taking a sleep apnea regulation through the rulemaking process when it joined 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.
This past August, the FMCSA formally withdrew the rulemaking, saying that the “current safety programs” are the appropriate avenues to address obstructive sleep apnea.
“With this withdrawal, FMCSA continues to revise its requirement that truck drivers be examined for obstructive sleep apnea but without adherence to public law or the rulemaking requirements of the Administrative Procedures Act,” OOIDA wrote in its latest filing. “In its withdrawal, FMCSA states that obstructive sleep apnea remains an ongoing concern, and that it received valuable information from the public comments. But it makes no finding nor describes any reason not to go forward with an obstructive sleep apnea rulemaking. It states, without explanation, that it believes ‘the current safety programs … are the appropriate avenue to address obstructive sleep apnea.’”
OOIDA also said that the FMCSA’s proposed future actions in the withdrawal support the argument that the agency has established a rule.
Among those future actions:
- updating its bulletin to medical examiners and training organizations by adopting its Medical Review Board’s “objective criteria for identifying drivers who may be at greater risk for obstructive sleep apnea.”
- explaining in the bulletin “specifically how the standard applies to drivers who may have obstructive sleep apnea.”
- updating the bulletin to “ensure that medical examiners fully understand their role in screening drivers for obstructive sleep apnea, identifying drivers at the greatest risk of having obstructive sleep apnea, and refer only those individuals to a sleep specialist for testing.”
“Through these activities, FMCSA clearly communicates that trainers of medical examiners, medical examiners and drivers must comply with the sleep apnea ‘criteria,’” OOIDA wrote. “If respondents are not able to promulgate a new rule focused specifically on obstructive sleep apnea, then they can’t defend the challenged final rule for incorporating, without public comment or analysis, instructions to medical examiners to review truck drivers for obstructive sleep apnea and other health issues.”
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