FMCSA files response to OOIDA’s medical certification lawsuit

By Mark Schremmer, staff writer

The Federal Motor Carrier Safety Administration asked the U.S. Court of Appeals for the Eighth Circuit to deny the Owner-Operators Independent Drivers Association’s petition that claims the agency bypassed the rulemaking process in its rule on medical examiners.

FMCSA filed the response to OOIDA on April 13. The lawsuit surrounds 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. As of press time, oral arguments for the case have not been set.

The agency announced it was creating procedures by which medical examiners would submit the results of driver medical examinations to the states so that a driver’s medical certification would be combined with the commercial driver’s license.

In its opening brief filed in January, OOIDA argued that the FMCSA overstepped by adding regulations that didn’t go through the rulemaking process.

At issue, OOIDA said the FMCSA incorporated into the Code of Federal Regulations a detailed list of specific medical criteria as Appendix A, which the agency didn’t include in its notice of proposed rulemaking. 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 President Barack Obama signed a law in October 2013 that required the FMCSA to use a formal rulemaking process before requiring sleep apnea testing for commercial truck drivers.

“The agency did not demonstrate a connection between these medical criteria and driver safety,” OOIDA wrote. “The agency did not ask for public comments on Appendix A, nor did the agency evaluate the burden and cost of evaluating and testing these medical criteria in a driver examination.”

FMCSA contends that the petition doesn’t show an injury caused by the rule.

“The petition rests on the incorrect contention that this rule expands the examination and testing requirements to include sleep disorders or sleep apnea,” FMCSA wrote. “But the addition of sleep disorders and sleep apnea to the driver health history section of the medical examination report form and to the accompanying advisory guidance occurred in 2000, fifteen years before adoption of the final rule at issue here.

“The guidance merely restates the regulatory standard for driver physical qualifications and tells medical examiners what the agency thinks the regulation means.”

OOIDA argued that drivers are being medically disqualified based on doctors’ beliefs that the sleep apnea guidelines are mandatory.

“By incorporating the medical condition of sleep disorders, including obstructive sleep apnea, into both the Medical Examination Report and Appendix A Medical Criteria, the agency exceeded its authority under Public Law 113-45, which requires the agency to perform a rulemaking before incorporating any sleep disorder standard into the medical certification process,” OOIDA wrote.

OOIDA petitioned the FMCSA to reconsider the final rule on May 22, 2015. The Association argued that the new medical criteria, including sleep apnea, must be established through a proper rulemaking process. OOIDA also provided examples of its own members’ problems with medical examiners interpreting the medical certification inconsistently.

However, the FMCSA denied OOIDA’s petition for reconsideration on Sept. 9, 2016, saying that the final rule did not change the underlying medical examination criteria and that the public had adequate notice and an opportunity to comment.

“FMCSA violated the Administrative Procedure Act’s notice and comment requirements when it adopted Appendix A without first publishing it in its notice of proposed rulemaking on May 10, 2013,” OOIDA argued. “FMCSA violated the APA and the Motor Carrier Act for both the Medical Examination Report expanded health history and Appendix A when it provided no reasonable basis or purpose establishing those medical criteria for how a driver was to be examined and evaluated for medical certification. The agency also violated the Motor Carrier Act when it failed to consider the costs of implementing, into the medial certification process, the medical criteria listed in both the Medical Examination Report and Appendix A.” LL