FMCSA will go through formal rulemaking process to make sleep apnea recommendations mandatory

WASHINGTON, D.C. — U.S. President Barack Obama has signed a bill that will require a formal rulemaking process be followed in order for sleep apnea screening to become mandatory for American commercial vehicle drivers. The bill was prompted by the U.S. trucking industry’s fears that the Federal Motor Carrier Safety Administration would issue a guidance rather than go through an extensive formal rulemaking process. A guidance is a publication that would contain a set of instructions or expectations around sleep apnea. However, there is no word on whether a guidance was ever on the table. The proposed sleep apnea rules (as published in April of 2012, based on the joint recommendation of the FMCSA’s Medical Review Board and the Motor Carrier Safety Advisory Committee) expand on the current medical criteria used to evaluate drivers by providing employers (and examining physicians) with a specific template to comply with. Right now, medical examiners are expected to use their own judgment to determine if a commercial driver has a sleep disorder. With the passing of this bill, it is certain that a full rulemaking process, including a notice and comment period, will be followed before the proposed sleep apnea rules become law. While waiting for this to happen, it is in an employer’s best interest to take the proposed rules into consideration when developing their own internal policies. No carrier wants to be the first legal test case whereby they fail to act in accordance with a proposed rule and it results in an accident. It remains to be seen if the U.S. will make it mandatory for international carriers to comply with the sleep apnea regulations once they take effect. Currently, a reciprocity agreement exists between Canada and the U.S. whereby the U.S. accepts Canadian commercial vehicle license holders to be medically qualified to drive on U.S. highways. It is expected that the Canadian Council of Motor Transport Administrators, which publishes medical qualification criteria guidelines for Canadian commercial drivers, would take the U.S. sleep apnea regulations into consideration.