NASTC's Comments on Proposed Apnea Rulemaking
April 26, 2016
Docket Services (M-30)
U.S. Department of Transportation West Building Ground Floor
1200 New Jersey Avenue SE.
Washington, DC 20590-0001
RE: Docket No. FMCSA-2015-0419
To whom it may concern:
The National Association of Small Trucking Companies (NASTC), which represents more than 6,000 commercial motor carriers, is pleased to provide comments on the Advance Notice of Proposed Rulemaking regarding Evaluation of Safety-Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea, published March 10, 2016 (FMCSA-2015-0419).
NASTC is a member-based organization whose members range from a single or two or three power units to more than 100 power units; however, our members average 16 power units. These companies operate in the long-haul, over-the-road, full-truckload, for-hire sector of interstate trucking. NASTC’s members come from the largest segment of America’s long-haul trucking — small motor carrier businesses. Our members and we are committed to safety.
One cannot separate the discussion of this proposal from the 20-plus year debate over the Hours of Service (HOS), the 20-plus year debate about over-theroad drivers’ logs (RODS), and the vague and nebulous issues surrounding driver fatigue.
One could go back to the aborted attempt of the Clinton administration’s HOS proposal of 1999, which was ultimately thwarted when Congress defunded the proposal and sent FMCSA back to the drawing board until the 2004 proposal came out. One could go back to the unwise acceptance of the “relative risk” chart 5 that the agency bought as good science, which concluded that a driver was five to ten times more likely to have an accident in his 10th, 11th, and 12th hour of driving than his first. We now know that the 1st hour of driving is the most dangerous. One could go back to Joan Claybrook’s bald-faced assertion at the 1999 driver fatigue symposium in Washington, DC, where, as founder of Parents Against Tired Truckers (PATT), she proclaimed that “over 60% of American’s truck drivers have sleep apnea and that’s equal to or worse than driving drunk” (emphasis added). One could go back as recently as 2012. when the American Trucking Associations (ATA) pointed out that FMCSA “cooked the books” on several conclusions that exaggerated driver fatigue to suit the agency’s rationale on HOS, CSA, and obstructive sleep apnea. See enclosure A.
Fatigue is a subjective and nearly impossible characteristic to track or measure. It manifests itself uniquely in each of us. It is the primary causal factor only 1.5% of the time in a truck/car accident, although, as stated earlier, it is almost always a contributing factor. NASTC believes that a solid, well thought-out HOS rule is our best chance to battle fatigue from a regulatory perspective, in conjunction with an industrywide effort to assist drivers in managing their own fatigue.
Joan Claybrook’s quote mentioned above was wrong on both counts – 60% of America’s drivers having apnea is understated. All of our drivers have apnea, as do we all. No one makes 100% on an apnea test – we all have some degree of sleep apnea, regardless of age, gender, size, or body mass index (BMI). What the government needs to address is sleep deprivation, sleep deficits, narcolepsy and chronic fatigue that result in a safety risk for both the driver and the driving public.
The presence of sleep apnea, treated or untreated, should not be a function of the regulations unless there is a clear indication of chronic fatigue, as a direct result of the apnea. If a tested person has an apnea/hypopnea index (AHI) below 20, there is very little likelihood that he or she has a sleep deficit that will create chronic fatigue and a safety issue. This will vary from person to person and is certainly a liquid benchmark.
In a clinical sense, anyone with an AHI between 10 and 20 is considered to have mild apnea. They should consult a physician, determine if harm is being done beyond sleep deprivation, and seek advice on possible treatment. Because of the second part of Ms. Claybrook’s statement, that driving with untreated apnea is worse than or equal to driving drunk, regulators became obsessed with untreated apnea as a safety hazard. They called in the sleep lobby, who sold them on Circadian Rhythms theory in the HOS rationale, and began to adopt policies based on their guidance from a totally academic and clinical perspective, as opposed to data derived from actual field performance in a range of real-world settings and circumstances.
They adopted STOP BANG protocol as a grading standard for qualifying drivers for a medical card and trained their certified medical examiners (CMEs) to use this protocol in DOT examinations. STOP BANG is a series of eight questions to be asked by the CME, a nurse practitioner, chiropractor, or doctor in an urban area connected with a sleep lab, and if three or more of these queries are answered in the affirmative, the CME is trained to issue a 90-day medical card and insist on a sleep study. The questions on STOP BANG are as follows:
1. Do you snore loudly? S
2. Do you feel tired, fatigued or sleepy
during the day? T
3. Have you been observed stopping
breathing during sleep? 0
4. Have you been treated for high blood
5. Is your BMI more than 35%? B
6. Is your age over 50? A
7. Is your neck circumference over 15.75
8. Are you a male? (Gender)? G
Questions 6, 7, and 8 almost assure that all males over 50 would be required to get a sleep study to obtain the necessary medical card. This almost laughable overreach by the agency has created many bothersome situations for companies, drivers, medical examiners, safety directors, and insurance providers. It also has created a big-money boondoggle for sleep doctors, sleep labs, and medical equipment providers.
It finally occurred to the largest fleets that this was capable of negatively affecting their huge appetite for new drivers (many times needing more than 100 applicants per week). It also occurred to all of us that our safest and most experienced million-mile drivers, many of them males over 50, would not qualify to drive a truck under this overbroad standard, despite the fact that they had never touched anything but the loading dock in decades. Commercial motor carriers and objectively safe truck and bus drivers brought this regulatory injustice to the attention of Congress, and Congress agreed that FMCSA’s regulation was badly flawed and passed a law stating that the agency could not make apnea policy through guidance, it had to go through a formal rulemaking. It is that rulemaking on which we are now commenting.
THE REAL PROBLEMS
It is widely known and agreed that fatigue plays a role in all accidents, whether over-the-road or around the house. We all know and agree that commercial drivers should be held to a higher standard than the driving public because of their safety sensitive role. We all know and agree that their Hours of Service should be regulated. What we do not agree on is the HOS themselves. NASTC has maintained for more than 15 years that the 14-hour rule creates an artificial, rigid deadline that does not allow a driver to stop and take a break when he or she knows he or she is fatigued and needs a break. NASTC, and probably the entire industry, has agreed that a reasonable and easily understood “split sleeper berth” allowance would add sufficient flexibility to the HOS that would allow drivers to better manage their own fatigue. An often overlooked improvement in the HOS that would result from a split sleeper berth allowance is that the driver would have to log it as sleeper berth time, not “off duty” time, when using the allowance.
We know that good, experienced, “million-mile” drivers prevent thousands of accidents daily. We know that inexperienced drivers do not do as well with this due to lack of experience and training. That is why NASTC has recommended that driver turnover be regarded as a critical enchmark in crash reduction. We have proposed this, on numerous occasions, as an 8th BASIC in CSA. This suggestion has gotten no traction, however, perhaps because the largest carriers generally dominate the government’s thinking on safety issues, and their turnover rates exceed 100% (while NASTC members enjoy turnover rates in the teens).
In addition, fatality rates involving large trucks show a more than notable accomplishment by the trucking industry from 2006 to 2010, when fatalities decreased from 1.9 deaths per 100,000,000 miles driven to 1.3 deaths per 100,000,000 miles driven. This amounts to a 33% improvement. This trend reversed coincidentally with the rolling out of the Compliance Safety Accountability program in 2010. One phenomenon that directly coincided with this time frame was a cutback in capacity by the megafleets. This was economically driven, as are all such decisions, and by 2010 their fleet sizes were 20% smaller almost across the board. Notably, their driver-turnover rates in 2010 were the lowest they had been in decades.
One might conclude from this that unhealthy growth, a lowering of driver standards, higher turnover rates, and inexperienced drivers represent the major culprit in an increase in fatalities. And, conversely, when driver turnover rates improved from over 100% down to 70-80% from 2006 to 2010, fatalities went down 33%. An alternative for addressing the core safety concern underlying the ANPRM on sleep apnea is that when a company of any size goes beyond a 75% driver turnover rate, that company be heavily scrutinized, forced to use electronic logging devices (ELDs), forced to govern their truck engines, and not be allowed to grow until their numbers improve. Inexperienced drivers represents our biggest safety issue in trucking, not sleep apnea-induced fatigue. See enclosure B.
NASTC’S Sleep Apnea Initiative (ahead of, and beyond, compliance)
NASTC does drug and alcohol testing administration for over 3,000 of our member companies. As the certified medical examiners registry evolved and policy was made on sleep apnea through FMCSA guidance and STOP BANG, we felt the need to expand our drug testing program to include a more comprehensive Driver Health and Wellness offering that includes two other elements beyond drug and alcohol.
The first is a “Driver Portfolio” that includes a medical log, medical history, current medicines taken, a chain of custody form for a postaccident drug screen, emergency phone numbers, pertinent apnea and/or C-Pap compliance data, a NASTC CME directory, and company procedures for an emergency. This portfolio could save lives at an accident scene.
The other element in this Driver Health and Wellness Program is our Sleep Apnea Solution that is described in detail in enclosures C and D. We believe this program represents a realistic, common-sense approach that allows company owners, their drivers, safety directors, certified medical examiners, and the FMCSA a path to address CSA, driver fatigue, fatiguerelated health issues, and fatiguerelated crashes. We believe — and strongly suggest — that a regulation designed similar to our solution makes the greatest sense and would save lives, without compromising the opportunity for good, safe, and alert drivers to continue making a living driving a truck.
COST AND CONTEXT
Federal agencies are required to perform a cost/benefit analysis for rulemakings and to demonstrate that each proposed rule’s benefits outweigh its costs. Over the years, this has become a game. Agencies adeptly play the game by picking their own studies, imaginatively applying the data and, as enclosure A illustrates, misrepresenting the data. The recent mandate of ELDs was supported by the agency’s own study, which determined a net savings of 19 lives. We suspect this number cannot be supported statistically, even as the agency has raised the monetary value
of a life from just over $1,000,000, to $3,000,000, to $6,000,000, and now to over $9,000,000 in the past decade.
The study the University of Minnesota recently conducted, commissioned by FMCSA, serves as another example of an agency-controlled study, in a controlled environment, with a controlled conclusion. See OOIDA’s comments on this study.
The associated costs of mandatory sleep studies for drivers to qualify to drive is off the chart for drivers, companies, and insurance providers, with little promise of substantial benefit. NASTC believes that sleep apnea and the decision to treat or not treat should be a personal decision made by an individual and his doctor.
* * * * *
In conclusion, small-business trucking and our drivers support well-founded, beneficial regulation that targets a demonstrable problem in a targeted manner. NASTC urges an alternative approach to improving driver safety — giving truck drivers flexibility through split sleeper berth time and scrutinizing carriers with excessive driver turnover. The data on truck drivers suffering sleep apnea-induced fatigue that results in highway accidents do not support an extension of the STOP BANG regime. Instead, modeling a rule on the NASTC Driver Health and Wellness Program would go a long way toward responsibly regulating driver medical fitness, without empowering a cottage industry of sleep-study rent seekers, as now has cropped up from the certified medical registry regime.
*For copies of enclosures please call me.
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