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Safety Advisory Committee Airs Driver Medical Issues

September 10, 2013

By Oliver Patton

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Deputy Transportation Secretary John Porcari visited a safety advisory panel meeting Tuesday and trucking leaders there took the opportunity to raise some industry concerns.

Porcari was on hand to thank the volunteer members of the Motor Carrier Safety Advisory Committee for their service. The panel of 20 representatives from trucking, the bus industry, law enforcement and safety advocates researches issues and offers recommendations to the Federal Motor Carrier Safety Administration.

This week, for example, the committee is meeting with the agency’s Medical Review Board to discuss possible changes in how FMCSA handles Schedule II medications. It also is working on possible revisions to the CSA safety enforcement program.

Don Osterberg, senior vice president of safety, security and driver training for Schneider National and a member of the committee, asked Porcari to consider the department’s approach to truck driver medical qualifications.

Under current practice, the agency posts guidelines and recommendations for medical examiners, rather than going through the time-consuming and complex process of drafting the guidance as rules.

Osterberg said he understands why the agency works this way but pointed out that it 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.

But at the same time, he said, when the recommendations bump up against other federal requirements, such as the Americans with Disabilities Act, carriers can be held accountable for violating the act by following the agency’s recommendations.

“We need clarity, we need relief from that ‘pick-your-lawsuit-environment’ that we’re in,” he told Porcari.

A solution might be to change the recommendations to rules, to remove the uncertainty, he said. “I just ask your consideration to understand that and see what we can do to address it.”

Porcari did not have a direct answer but did tell Osterberg he had “a fair point.”

He pointed out that the department must balance the risks and speed of rulemaking against the value of getting things done more quickly.

“I think we all pick our litigation risk,” he said. “We can’t get too hung up on the defensive medicine part of it. We have to build a consensus on the path forward and agree that somebody somewhere is going to sue us no matter what we do.”

Todd Spencer, executive vice president of the Owner-Operator Independent Drivers Association, pressed Porcari for quicker action on driver training requirements.

“Shortcuts in training and experience lead to crashes,” Spencer said. “From our perspective these are the key elements in safety.”

The agency has had a proposed rule on its docket since 2006 and is required by Congress to produce a final rule this year, although that is not likely to happen.

The rule is supposed to require behind-the-wheel training for entry-level drivers, among other things.

Again, Porcari was not able to make a commitment but he did say that training is an important piece of the safety puzzle.

The committee continues its work today with discussions on the North American Fatigue Management Program as well as CSA.

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