WASHINGTON—Federal regulators have withdrawn a proposed rule to study increased regulation of obstructive sleep apnea in commercial vehicle operators after determining the issue was adequately covered under existing medical examinations.
FMCSA is considering an update, though, to its Jan. 2015 “Bulletin to Medical Examiners and Training Organizations Regarding Obstructive Sleep Apnea,” according to the Aug. 8 notice, as a way to ensure that drivers with a propensity toward drowsiness are adequately checked.
“The purpose of any action updating the bulletin is to ensure that medical examiners fully understand their role in screening drivers for OSA, identifying drivers at the greatest risk of having OSA, and refer only those individuals to a sleep specialist for testing. The Agency reminds medical examiners that there are no FMCSA rules or other regulatory guidance beyond what is referenced in this paragraph above with guidelines for screening, diagnosis, and treatment of OSA in CMV drivers.
“Medical certification determinations for such drivers are made by the examiners based on the examiner’s medical judgment rather than a federal regulation or requirement.”
The “Advanced Notice of Proposed Rule-Making” was initially issued by the Federal Motor Carrier Safety Administration and Federal Railroad Administration on March 10, 2016. But the agencies recently announced that current regulations are sufficient. Additionally, the agencies said they would seek “information from interested parties regarding OSA (obstructive sleep apnea) to better inform their decision on whether to take regulatory action and, if so, how to craft the most effective and efficient regulations to address the potential safety risks associated with untreated OSA.”
This research would “help the agencies quantify the potential economic benefits and costs of adopting standards to assess risks associated with motor carrier and rail transportation workers in safety sensitive positions diagnosed with OSA.”
The FMCSA and FRA proposed the rule initially to determine the scope of the OSA problem, costs and benefits of regulatory actions, treatment effectiveness and qualifications for medical personnel engaged in diagnosis and treatment. Three listening sessions were held in May 2016.
The rulemaking withdrawal stated that “OSA remains an on-going concern for the agencies and the motor carrier and railroad industries” because it can cause unintended sleep episodes and resulting deficits in attention, concentration, situational awareness and memory. The fear is this can reduce the capacity to respond to hazards on the road. However, information received during the rulemaking process indicated that current safety programs addressing fatigue risk management are appropriate avenues for addressing the issue.
The FMCSA says it will continue to recommend that drivers and their employers use the North American Fatigue Management Program.
The United Motorcoach Association was key in encouraging the rule withdrawal. It helped to craft Public Law 113-45, which requires the Department of Transportation to follow a full rule-making procedure, rather than just issue an administrative act, before implementing a new regulation regarding obstructive sleep apnea.
“We always felt that OSA was adequately covered under the existing medical examination,” said Ken Presley, UMA’s Vice President of Legislative and Regulatory Affairs.