Thursday, April 19, 2018

OOIDA Court of Appeals filing says FMCSA's medical form didn't go through rulemaking process

Monday, May 15, 2017

GRAIN VALLY, Mo. — The Owner-Operator Independent Drivers Association said in an appeal filed last week in the U.S. Court of Appeals for the Eight Circuit that the Federal Motor Carrier Safety Administration overstepped its bounds when it issued a final rule two years ago with regulations that didn’t go through the rulemaking process, according to a report in Land Line magazine, the official publication of OOIDA.

The lawsuit concerns a final rule FMCSA issued in April 2015 that required certified medical examiners, who perform physicals on drivers of commercial motor vehicles, to use a new medical form.

OOIDA argues that the FMCSA incorporated into the Code of Federal Regulations a detailed list of specific medical criteria as Appendix A that the agency didn’t include in its notice of proposed rulemaking, the Land Line article said.

One of OOIDA’s concerns was that sleep apnea was listed as one of the areas for medical examiners to review when deciding whether or not to medically certify a driver even though a law was signed in October 2013 that required the FMCSA to use a formal rulemaking process before requiring sleep apnea testing for commercial drivers.

“For the last 17 years, petitioners have witnessed and experienced the driver medical certification process become more complicated, burdensome and expensive,” OOIDA wrote in its brief. “This has occurred as FMCSA has gradually revised and expanded the scope of its so-called ‘advisory’ medical criteria and then incorporated those criteria in the instruction and training of medical examiners.

“FMCSA has been able to advance this agenda without either exposing those requirements to the public comment and transparency requirements under the Administrative Procedures Act, or performing a cost-benefit analysis of them under the Motor Carrier Act. Now that FMCSA has incorporated those criteria as a stand-alone section of the Code of Federal Regulations, it is time that they be held accountable to the public for their promulgation.”

In April, FMCSA argued that the petition didn’t show an injury caused by the rule, the article said.

 However, OOIDA claims what FMCSA did has affected many truck drivers.

“OOIDA members have suffered and are in imminent danger of suffering concrete and particularized injury as a direct result of the deficiencies of the final rule,” OOIDA wrote. “A driver must hold a valid medical certificate at all times to qualify to operate a commercial motor vehicle. OOIDA has documented at least three dozen complaints from drivers where medical examiners throughout the country have arbitrarily diagnosed sleep apnea, have ordered expensive tests and sleep studies, and have denied drivers medical certification based upon standards that are not approved nor supported by any medical evidence beyond the personal preference of the medical examiner.”

FMCSA also argued that the rule didn’t expand examination and testing requirements, saying the original guidance started in 2000.

However, OOIDA said the FMCSA is contradicting itself.

“They argue, simultaneously, that the medical advisory criteria have been ‘in force’ for a long time but that they do not have the force of law and establish no obligation or legal requirement,” OOIDA wrote.

OOIDA said also said that since FMCSA tests medical examiners and can remove them from the registry that those doctors feel obligated to follow the guidelines.

“Medical examiners are taught that the advisory criteria are rules, that they are required to apply the criteria to drivers, using them to medically qualify or disqualify drivers,” OOIDA said.

And FMCSA never proved the regulation was necessary, OOIDA argued.

“The resulting final rule imposes a more burdensome and costly medical certification process for truck drivers, while the medical criteria have never been justified in a rulemaking with a cost/benefit inquiry required under the APA and the Motor Carrier Act.”

In 2008, FMCSA’s Medical Review Board (MRB) “found that obstructive sleep apnea causes daytime sleepiness, making drivers more likely to have accidents.”

 Then last year, the MRB recommended required sleep studies for drivers who either have BMIs of 40 or above, or have BMIs of 33 or above plus three additional risk factors.

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