On August 4, 2017, the Federal Motor Carrier Safety Administration (FMCSA) and the Federal Railroad Administration (FRA) announced the withdrawal of their advance notice of proposed rulemaking (ANPRM) which would have required railroads and trucking companies to test employees for obstructive sleep apnea. This is one of many withdrawals of proposed safety regulations by the Trump administration.

The ANPRM was jointly issued in March 2016 as the first step for the agencies to consider whether to propose requirements concerning obstructive sleep apnea for commercial vehicle drivers and rail workers in safety sensitive positions. Based on the potential severity of obstructive sleep apnea-related transportation incidents and crashes, the ANPRM sought information from interested parties regarding obstructive sleep apnea to better inform the agencies’ decision on whether to take regulatory action.

The ANPRM sought data and information concerning the prevalence of obstructive sleep apnea among individuals occupying safety sensitive positions in rail and highway transportation. The agencies also requested information about the potential economic impact and safety benefits associated with regulatory actions requiring transportation workers who exhibit multiple risk factors for obstructive sleep apnea to undergo medical evaluations and treatment.

In the notice of withdrawal published in the Federal Register, the agencies stated they had received more than 700 comments from individuals, medical professionals, labor groups, and transportation industry stakeholders as well as the National Transportation Safety Board. In withdrawing the ANPRM, the agencies stated that current safety programs, along with FRA’s rulemaking addressing fatigue risk management, can appropriately address obstructive sleep apnea.

The obstructive sleep apnea safety issue is not new. In 1991, the Federal Highway Administration (FHWA) issued recommendations on obstructive sleep apnea and commercial drivers in their Conference on Pulmonary/Respiratory Disorders and Commercial Drivers. In 2000, FMCSA began issuing recommendations concerning the screening and monitoring of truckers with sleep apnea. In 2002, the Medical Advisory Criteria from the new examination form was updated to include a reference to sleep apnea. In 2006, a task force including American College of Occupational and Environmental Medicine, American College of Chest Physician, and the National Sleep Foundation, published recommendations. In 2007, the newly-created FMCSA Medical Review Board issued recommendations. Additional Medical Expert Panel, Motor Carrier Safety Advisory Committee and Medical Review Board recommendations were issued in 2012 and 2016. An FMCSA Bulletin to Medical Examiners and Training Organizations Regarding Obstructive Sleep Apnea was issued in 2015.

In addition, in 2004, FRA issued a Safety Advisory to alert the railroad industry, and employees with safety sensitive duties, to the danger associated with degradation of performance resulting from sleep disorders. In 2012, the National Transportation Safety Board recommended that the Department of Transportation take action to address obstructive sleep apnea screening and treatment for transportation workers.

Although withdrawing the ANPRM, the agencies noted that obstructive sleep apnea remains a concern for the agencies and the motor carrier and railroad industries. Obstructive sleep apnea may result in deficits in attention, concentration, situational awareness, and memory, reducing trucking and railroad employees’ ability to safely respond to hazards when performing safety sensitive duties.

The agencies encourage trucking and rail companies to voluntarily screen truck drivers as well as train engineers and other employees involved in safety-sensitive work for obstructive sleep apnea. The agencies note the ongoing concern that obstructive sleep apnea can cause unintended sleep episodes and resulting deficits in attention, concentration, situational awareness, and memory. These symptoms can impact a truck driver or rail worker’s capacity to safely respond to hazards.

FMCSA also continues to recommend that truck drivers and their employers use the North American Fatigue Management Program (NAFMP). The NAFMP is a voluntary, interactive, web-based educational and training program that provides information and guidance to truck and bus drivers and carriers concerning the factors contributing to fatigue and its impact on performance and safety.

Meanwhile, although New Jersey Transit has a sleep apnea screening program, the train engineer at the controls of a commuter train that crashed into the Hoboken Terminal in 2016 claims that his later-diagnosed sleep apnea was a factor in the fatal train accident.