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Congress Passes Bill Requiring Formal Rulemaking for Any Trucker Sleep Apnea Rule

By October 18, 2013July 17th, 2019Uncategorized

I’ve written a lot here about the Federal Motor Carrier Safety Administration and its safety rules for truckers and trucking companies. The FMCSA’s rules are generally aimed at keeping us safer—but its rulemaking process can be very, very slow. That’s partly because careful rulemaking takes time and public input is required—but it’s not always a good thing when people’s lives are at stake. So I was disappointed to read that the federal government has passed a law—during the shutdown, in fact—taking some flexibility away from the FMCSA if it chooses to make a rule about sleep apnea. The law, signed by President Obama Oct. 16, requires the FMCSA to use formal rulemaking rather than its guidance authority.
Sleep apnea is a disorder in which the patient has brief moments of not being able to breathe while sleeping, causing frequent waking and thus a poor quality of sleep that can affect the patient’s ability to function. It’s an issue in the trucking industry because it disproportionately affects truck drivers, raising important questions about dangerously over-tired truck drivers. According to Overdrive Online, the FMCSA has hinted that it might make a sleep apnea rule using its guidance authority. This displeased the trucking industry because guidance doesn’t give drivers or trucking companies a chance to give their input on the FMCSA’s rules. It also happens more quickly than the formal rulemaking process.
This law doesn’t require the FMCSA to make or not make a sleep apnea rule. Instead, it forbids the FMCSA from using formal guidance to address the issue of sleep apnea. The bill’s introducer, Rep. Larry Buschon, R-Md., said the requirement was “in the interests of due process.” He also said using guidance would make trucking companies more vulnerable to semi truck accident lawsuits. Any such rule would likely require a screening for sleep apnea before truckers can be medically certified as safe to drive. That was the recommendation from the Motor Carrier Safety Advisory Committee/Medical Review Board in 2012. It’s not clear how long the FMCSA would need make such a rule through the rulemaking process, but other formal rulemakings have taken years.
It’s good news that sleep apnea is on the FMCSA’s agenda at all. People with sleep apnea can be substantially impaired by sleep loss when they live their waking lives. That’s not good for anyone, but it’s particularly dangerous with commercial drivers, who are in charge of huge, multi-ton machines that can easily kill or catastrophically injure people in smaller vehicles. The FMCSA evaluates truck drivers for other medical conditions that could affect their safety; sleep apnea should be no different. But this law makes it harder to make a sleep apnea law quickly, by taking away some of the FMCSA’s flexibility. And judging by the comments from Rep. Buschon—and the fact that the bill was sneaked into law without much fanfare—legislators know it won’t be good for consumers. Injured people can still sue over accidents caused by dangerously fatigued truckers, but a rule would make that easier—and more importantly, prevent those deadly crashes.

If your family has suffered a catastrophic injury or a loss because of a truck driver’s or trucking company’s negligence, don’t hesitate to contact Carey, Danis & Lowe for help. You can set up a free consultation by calling us at 1-877-678-3400 or sending us an email.
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