Federal Update
Sleep apnea double-take?
Senate subcommittee delves deep into trucking issues, holding the FMCSA accountable on sleep apnea, hours of service, and minimum insurance requirements for motor carriers.

By David Tanner, associate editor

Anyone listening to a Senate subcommittee hearing on trucking issues in early June may have done a double-take when FMCSA Administrator Anne Ferro answered questions about sleep apnea that were posed by Sen. Roy Blunt, R-Mo.

Blunt began an exchange by asking whether the FMCSA was skirting a law passed in September 2013, which requires the agency to undergo a full cost-benefit analysis and formal rulemaking process prior to issuing any rule that would regulate sleep apnea for truck and bus drivers.

OOIDA supports the restriction that Congress placed on the FMCSA because it prevents regulators from simply issuing guidance to medical examiners on apnea testing and treatment.

“I’m told that your trainers are still referring to doctors even though there’s still no rule that’s been promulgated yet. Is that true?” asked Blunt, the ranking Republican on the Senate Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety and Security, which is part of the Committee on Commerce, Science and Transportation.

Ferro assured the subcommittee that the FMCSA was following the rules in all guidance supplied to medical examiners.

Blunt followed up by asking if the FMCSA planned to do a rule as the law prescribes.

“We are absolutely not,” Ferro responded, seemingly contradicting what she has said in the past.

But the administrator may have believed she was answering a different question during the exchange, FMCSA Communications Director Marissa Padilla told Land Line Magazine following the hearing.

“She was trying to make the point that FMCSA was not circumventing Congress’ direction under the law that they passed to pursue guidance to obstructive sleep apnea through a formal rulemaking and comment process,” Padilla said. “I think that’s what she was trying to get at, and it obviously got confused there. We’re going to try to correct the official record.”

Padilla affirmed the agency’s intention to pursue an apnea regulation in the future.

“FMCSA will issue a notice to address obstructive sleep apnea through the formal rulemaking process after collecting the necessary data and research,” she said.

Ferro made a point during the hearing that medical examiners already possess the discretion to evaluate disorders, including obstructive sleep apnea, before they issue medical cards to drivers.

“Medical examiners are expected when they examine a truck or bus driver, and determine if they meet the physical qualifications for holding a commercial driver’s license, to include a full examination of chronic conditions and conditions that could affect that driver’s ability to be alert and at all times conscious behind the wheel,” Ferro told the subcommittee.

Administratively, there’s no timeline yet for when an apnea proposal could appear in the Federal Register.

HOS, insurance minimums discussed
The subcommittee also discussed hours of service and an FMCSA proposal to increase minimum insurance levels for truckers.

Sens. Deb Fischer, R-Neb., and Kelly Ayotte, R-N.H., questioned the economic effects of the HOS changes on small-business truckers.

“Yes, there’s been an economic impact on the industry, and we certainly recognized that would happen,” Ferro said. “The majority of the impact is on the long-haul, over-the-road, irregular-route driver.”

Fischer wanted to know how the past 11 months stacked up against the FMCSA’s projection that HOS reforms would save 19 lives and 500 injury crashes per year.

“In regard to the safety benefits, the way crash and injury data is reported, we don’t have the data yet to show, but we certainly do know that it is having an impact … and we’ll press forward as we committed,” Ferro said.

Ferro said technology will play a role in data collection.

“The electronic logging devices, onboard technologies, monitoring of drivers – all of that will be part of our analysis going forward with naturalistic driving studies,” she said.

About HOS, Ayotte said truckers are concerned about restrictions that force them to drive when roads are congested.

“What I’m hearing from companies large and small is that they’re going to have to drive more during the day – that they’re going to have to put more trucks on the road,” Ayotte said.

Ayotte then pressed Ferro about the FMCSA’s advanced notice of proposed rulemaking that could lead to minimum insurance increases.

Ayotte said the Motor Carrier Safety Act of 1980 requires the administration to describe the rationale for selecting insurance limits and to estimate the economic effects on motor carriers including small-business carriers and owner-operators. She asked if Ferro and the agency planned to hold to those requirements.

“Yes, you absolutely have my commitment and the agency’s commitment,” Ferro said.

OOIDA leadership is pleased to see truckers’ issues getting the spotlight.

“Committee members are really touching on issues that OOIDA members and truckers around the industry are concerned about,” OOIDA Director of Government Affairs Ryan Bowley said.

“It all goes back to the world the FMCSA lives in now. They do the research, and they decide if it’s good quality research without any outside agencies to evaluate it,” he said. 

“What possible safety benefit could higher minimums have? There’s no bright line connecting the two, yet there’s going to be significant impact to small carriers.” LL