The Owner-Operator Independent Drivers Assn. (OOIDA) has filed a petition for review challenging in federal court the Federal Motor Carrier Safety Administration’s final rule on medical examiner’s certification integration. The small business trucking group says the agency bypassed the rulemaking process by adding an appendix on sleep apnea. The agency has recently rejected the call for review.
OOIDA filed with the U.S. Court of Appeals for the 8th Circuit in St. Louis saying that the appendix on sleep apnea was not included in the proposed rulemaking. The appendix includes instruction that examiners should consider whether a truck driver has obstructive sleep apnea. By law, the FMCSA is supposed conduct a formal rulemaking before requiring sleep apnea testing for commercial truck drivers, OOIDA argues
And such a rulemaking is in the preliminary stages. In March, FMCSA and Federal Railroad Administration (FRA) published an Advance Notice of Proposed Rulemaking that called for public input on the impacts of screening, evaluating, and treating commercial drivers and rail workers for OSA. The National Transportation Safety Board has recommended that DOT take action to address OSA screening and treatment for transportation workers, placing “require medical fitness for duty” on its Most Wanted List of transportation safety improvements for 2016.
FMCSA’s Motor Carrier Safety Advisory Committee (MCSAC) and the Medical Review Board met jointly last month to finalize a recommendation that drivers with a Body-Mass Index (BMI) over 40 be immediately disqualified until they undergo a sleep study and are either cleared or treated for sleep apnea. Drivers with BMIs from 33 to 39 should be screened for sleep apnea if they show any three other symptoms of sleep apnea.
But that rulemaking is independent of the final rule FMCSA issued in April 2015 that required certified medical examiners, who perform physicals on drivers of commercial motor vehicles, to use a new medical form. The agency announced it was creating procedures by which medical examiners would submit the results of driver medical examinations to the states so that a driver’s medical certification would be combined with the commercial driver’s license.
OOIDA contends, however, that the final rule’s appendix contains a section on respiratory dysfunction, which lists sleep apnea as one of the conditions. The appendix says “if the medical examiner detects a respiratory dysfunction that in any way is likely to interfere with the driver’s ability to safely control and drive a commercial motor vehicle, the driver must be referred to a specialist for further evaluation and therapy.”
In previous comments regarding the final rule, OOIDA said drivers are the ones forced to pay for the arbitrary standards.
“These practices pull safe drivers off the road for protracted periods of time and force them to spend thousands of dollars on unwarranted tests and expensive exams,” OOIDA wrote. “In worst-case situations, safe driving careers are ended and small businesses are forced to close. OOIDA members have experienced these consequences firsthand on too many occasions.”
OOIDA submitted a Petition for Review of the medical certification rule in May 2015, and FMCSA denied reconsideration in September this year. FMCSA contends the rulemaking followed federal procedures, and OOIDA “mischaracterized” the statute.
“The contents of the revised MER Form … relating to sleep disorders such as OSA are neither new nor are they ‘requirements.’ Sleep disorders that involve a respiratory dysfunction that can interfere with a CMV driver's ability to drive safely have been part of the physical qualification standards for years," the denial states. “FMCSA has not adopted any new requirements related to sleep disorders (including OSA) in this proceeding.”
OOIDA will file full arguments by Dec. 19.