WASHINGTON – The Federal Motor Carrier Safety Administration continues to back away from pending motor carrier regulations, announcing recently that it will no longer pursue a proposed rule on obstructive sleep apnea for commercial drivers.
The agency’s announcement that it was withdrawing the sleep apnea rule followed its decisions to eliminate or delay proposed rules that would have increased insurance liability minimums on commercial motor vehicles and mandated that such vehicles use speed limiters.
FMCSA’s actions follow an order issued by the Trump administration earlier this year that federal agencies freeze new regulations and delay those published but not yet effective.
FMCSA said in announcing the sleep apnea move that it has “determined there is not enough information available to support moving forward with a rulemaking action and so the rulemaking will be withdrawn.”
The rule originally was proposed on March 10, 2016, by FMSCA and the Federal Railroad Administration to determine the prevalence of moderate-to-severe obstructive sleep apnea (OSA) among individuals occupying safety sensitive positions in highway and rail transportation and its potential consequences for the safety of highway and rail transportation.
A sleep apnea rule would have given clarity to medical examiners, operators and drivers about what conditions or combination of conditions would prompt a driver to be referred for an apnea test and treatment.
Currently, medical examiners have the discretion to determine which drivers are referred for testing, and that apparently will continue.
In a Federal Register notice, FMCSA and FRA said current safety programs addressing fatigue management “are the appropriate avenues to address OSA.”
Experts say that drivers who have been diagnosed with sleep apnea cannot discontinue treatment and that a certified medical examiner can still request that a driver be tested in order to medically qualify to operate a commercial vehicle.
They said FMCSA likely will rely on past guidance on the issue, including a 2015 bulletin the agency issued stating that it “does not require that these drivers be considered unfit to continue their driving careers, only that the medical examiner make a determination whether they need to be evaluated and, if warranted, demonstrate they are managing their obstructive sleep apnea to reduce the risk of drowsy driving.”
The United Motorcoach Association said it agrees with the decision, noting that current regulations concerning sleep apnea are adequate.
“We are pleased Transportation Secretary (Elaine) Chao reviewed the proposed rule and chose to withdraw,” said Ken Presley, UMA’s vice president of industry relations and COO.
Presley said HR 2120, Buses United for Safety, Regulatory Reform and Enhanced Growth for the 21st Century (BUSREGS-21), which was introduced in the spring by Rep. Scott Perry, R-Pa., calls for FMCSA to withdraw the proposed rule.
The Owner-Operator Independent Drivers Association filed a lawsuit against FMCSA in January claiming a rule on medical examiner’s certification integration added sleep apnea regulatory language that bypassed the rulemaking process.
OOIDA also submitted formal comments opposing a sleep apnea rule, citing reports showing there is insufficient date to confirm a relationship between moderate-to-severe obstructive sleep apnea and increased crash risk.
“OOIDA opposes any regulations requiring obstructive sleep apnea screening until FMCSA identifies obstructive sleep apnea as the cause of a not-insignificant number of truck crashes,” the association wrote in its comments. “FMCSA should not jump to the immediate conclusion that obstructive sleep apnea is the primary cause of fatigue and that fatigue is the primary cause of crashes.”
