FMCSA Will Address Sleep Apnea Through Rulemaking
September 19, 2013
Who says government is slow and unresponsive?
A week ago two Representatives introduced a bill that that would compel the Federal Motor Carrier Safety Administration to write a regulation covering sleep disorders, including sleep apnea, rather than issue a guidance.
Earlier this week the House Transportation and Infrastructure Committee scheduled a vote to report the bill to the full House.
Yesterday, FMCSA announced that it will approach sleep apnea through a rulemaking, rather than a guidance.
“FMCSA will issue a notice to address obstructive sleep apnea through the formal rulemaking process after collecting and analyzing the necessary data and research,” the agency said in a statement.
The statement does not address the broader issue of sleep disorders.
This morning, the House T&I Committee in a unanimous voice vote reported the bill to the full House.
“The action of the committee has already produced the result we intended,” said Del. Eleanor Holmes Norton, D-D.C.
The bill had complete support on both sides of the aisle, even after the safety agency announced its new approach.
Reps. Larry Bucshon, R-Ind., and Daniel Lipinski, D-Ill., both said that the bill is necessary in order to codify Congress’s opinion on the issue.
“I appreciate FMCSA’s responsiveness, but to make sure there’s no confusion we need to move forward with the bill,” Lipinski said.
Companion legislation has not been introduced in the Senate but discussions are under way, a Hill insider said.
At issue is the government’s effort to make sure that truck drivers do not suffer from excessive fatigue as a consequence of sleep disorders.
FMCSA traditionally has approached this by issuing guidance to medical examiners on how to detect and treat sleep disorders.
The agency has been working for years on an update to this guidance, calling on its medical and industry advisory committees for counsel.
Last year, acting on the advice of the committees, the agency proposed tougher standards for sleep apnea evaluation.
Among other changes, the revised guidance to examiners would say that drivers with a body mass index of 35 or more must be evaluated for sleep apnea.
The advisory committees supported the “guidance” approach but saw it as an interim step toward a comprehensive rule.
Trucking interests have registered deep concern about the use of a guidance, and have been pushing for the rulemaking approach. They worry that the guidance will not give employers a clear enough statement of their legal responsibilities.
Don Osterberg, senior vice president of safety, security and driver training for Schneider National and an industry leader on this issue, recently told Deputy Transportation Secretary John Porcari that a guidance has the effect of putting trucking companies in a tight legal spot.
“It puts motor carriers in a situation where we can pick our lawsuit,” he said. He explained that carriers must embrace agency guidelines as rules, or be subject to post-accident litigation.
Trucking interests also want a full cost-benefit accounting for a sleep apnea rule, which they say could cost more than $1 billion a year. Such an analysis can only come through a formal rulemaking.
American Trucking Associations and the Owner-Operator Independent Drivers Association are on record in support of the bill.