By Brent I. Clark, Erin Dougherty Foley, and Craig B. Simonsen

Seyfarth Synopsis: DOT has withdrawn its rulemaking on safety sensitive positions in highway and rail transportation.

This week the U.S. Department of Transportation has withdrawn its March 10, 2016 Advance Notice of Proposed Rulemaking (ANPR) on the Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea (OSA). 82 Fed. Reg. 37038 (Aug. 8, 2017).

The News Release indicates that “the Agencies have determined not to issue a notice of proposed rulemaking at this time and believe that current safety programs and Federal Railroad Administration’s (FRA) rulemaking addressing fatigue risk management are the appropriate avenues to address OSA.”  Emphasis added.

The ANPR had been directed at individuals occupying “safety sensitive positions” in highway and rail transportation, and on its potential consequences for the safety of rail and highway transportation. The DOT’s Agencies, the Federal Motor Carrier Safety Administration (FMCSA) and the FRA, through the rulemaking, were requesting data and information from employers and the public concerning the prevalence of moderate-to-severe obstructive sleep apnea among those employees in those positions.

The DOT had defined obstructive sleep apnea as a “respiratory disorder characterized by a reduction or cessation of breathing during sleep. OSA is characterized by repeated episodes of upper airway collapse in the region of the upper throat (pharynx) that results in intermittent periods of partial airflow obstruction (hypopneas), complete airflow obstruction (apneas), and respiratory effort-related arousals from sleep (RERAs) in which affected individuals awaken partially and may experience gasping and choking as they struggle to breathe.”

The ANPR stated that risk factors for developing OSA included: obesity, male gender, advancing age, family history of OSA, large neck size, and an anatomically small oropharynx (throat). Additionally, OSA was associated with increased risk for other adverse health conditions such as: “hypertension (high blood pressure), diabetes, obesity, cardiac dysrhythmias (irregular heartbeat), myocardial infarction (heart attack), stroke, and sudden cardiac death.

The withdrawal of this rulemaking may save employers in these industries perhaps considerable efforts and costs, although familiarity with the ANPR and comments received on the rulemaking may be worthwhile.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or Labor & Employment Teams.