Two congressmen have introduced bipartisan legislation that would require the Federal Motor Carrier Safety Administration to write a regulation covering sleep disorders, rather than issue a guidance as it is planning to do.

Reps. Larry Bucshon, R-Ind., and Daniel Lipinski, D-Ill., on Thursday offered a bill that says the agency must go through the rulemaking process to regulate sleep disorders, including sleep apnea.

The agency has for years been working on updating its guidance to medical examiners regarding sleep disorders. Among other things, the pending guidance could tell examiners that drivers with a body mass index of 35 or more must be evaluated for sleep apnea.

But trucking interests are deeply concerned that the agency’s approach of posting a guidance, rather than a formal rule, does not give employers a clear enough statement of their legal responsibilities.

Just this week, for example, Don Osterberg, senior vice president of safety, security and driver training for Schneider National, told Deputy Transportation Secretary John Porcari that the agency’s approach 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.

Bucshon and Lipinski underscored that point in a letter to their congressional colleagues. The guidance, as opposed to a rulemaking, would make carriers “extremely vulnerable” to litigation, they said.

The congressmen said the trucking industry estimates it will cost more than $1 billion a year to screen, diagnose and treat sleep apnea among truck drivers.

“If FMCSA were to act through a formal rulemaking process rather than a guidance, the rule would be categorized as economically significant under (Office of Management and Budget) directives,” they wrote.

That means the agency would have to evaluate the costs and benefits of the rule, as it would not have to through the guidance approach.

The bill does not require the agency to set a sleep apnea policy and it does not say what such a policy should contain.

“It only states that in the interest of due process, any actions the agency takes be made through the rulemaking process,” the congressmen said.

The bill is endorsed by American Trucking Associations, the American Bus Association, the International Brotherhood of Teamsters, the National School Transportation Association, the Owner-Operator Independent Drivers Association, and United Motorcoach Association.

 

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