FMCSA Updates Guidance for Medical Examiners.  The Federal Motor Carrier Safety Administration has updated its guidance for Medical Examiners who provide physical qualification determinations for commercial motor vehicle drivers.  The FMCSA has published the changes in a revised Medical Examiner’s Handbook.

The changes and clarifications to the ME guidance include the following:

  • FMCSA clarified that the right to receive a copy of the Medical Examination Report Form, MCSA–5875, is personal to the individual and does not depend on who paid for or requested the physical qualification examination.  But the guidance clarified that its regulations do not prohibit an employer from obtaining copies of the Form MCSA-6875 with the employee’s consent.
  • An ME must maintain copies of the driver’s physical qualification certificate, Form MCSA-5876, for at least three years from the date of examination, and must provide a copy to a prospective or current employer upon request.
  • Drivers may request a second opinion and physical qualification examination from another ME if they choose but are expected to provide the same medical information to both MEs.
  • Once an ME begins an examination, the results must be reported to the National Registry of Certified Medical Examiners even if the examination is not completed.
  • The alternative vision standard is applicable only if the worse eye cannot be corrected to meet the distant visual acuity standard with corrective lenses.
  • Also, if the individual meets the vision standard while wearing corrective lenses, it is not necessary to document the distant visual acuity without corrective lenses.
  • When it is indicated that a medical exemption is required, the Medical Examiner’s Certificate, Form MCSA–5876, is not valid unless the individual applies for and is issued the medical exemption from FMCSA.
  • FMCSA emphasized that MEs may certify an individual for less than the maximum period whenever they determine they need to monitor the individual more frequently.
  • FMCSA clarified that DOT- regulated drug and alcohol testing is not part of the physical qualification examination but may be conducted concurrently with the examination for pre-employment or other authorized purposes.
  • FMCSA recognized that federal law prohibits the agency implementing or enforcing a requirement providing for the screening, testing, or treatment of CMV operators for sleep disorders, including obstructive sleep apnea (OSA), unless the requirement is adopted pursuant to a rulemaking proceeding.  But the MEH states that the regulations do not include requirements for MEs to screen individuals for OSA or to recommend that an individual be referred for OSA testing and do not include preferred diagnostic testing methods, treatment methods, or requirements by which to assess compliance with treatment. Instead, the MEH presents various considerations for MEs when making a physical qualification determination.
  • FMCSA concluded the hypertension table in the MEH was vague and unclear and removed it from the handbook.  The agency is currently conducting research on this topic and will update the MEH based on the final report if warranted.
  • FMCSA provided some additional information, including considerations for MEs when making a physical qualification determination for an individual with non-insulin-treated diabetes mellitus. In addition, FMCSA is in the process of seeking approval from the Office of Management and Budget for a new Non-Insulin-Treated Diabetes Mellitus Assessment Form.

Supreme Court Hears Arguments in Case to Limit Agency Deference.  The U.S. Supreme Court heard oral arguments on January 17 in two combined cases that challenged a 40-year-old precedent under which federal courts must defer to a regulatory agency’s reasonable interpretation of an ambiguous statute.  That principle, known as the Chevron doctrine, was taken from a decision in Chevron v. Natural Resources Defense Council, and has become the basis for aggressive rulemaking by federal agencies with limited judicial scrutiny.

The current cases before the court challenge a rule from the National Marine Fisheries Service that requires the fishing industry to bear the costs of agency-required observers on fishing boats. Applying the Chevron principle, two federal courts of appeal upheld the rule, holding that it was a reasonable interpretation of federal law.

According to court observers, during the three and one-half hour oral argument a majority of the court seemed inclined to overturn or limit the use of Chevron deference to agency interpretations of ambiguous statutes and allow the courts to decide all legal issues.  This could have major implications for rebalancing federal power between Congress, the courts, and agencies and call into question the validity of a number of current agency regulations in virtually all cabinet departments.

Third Lawsuit Filed Challenging Proposed NYC Congestion Pricing Plan.  A third lawsuit has been filed in federal court in New York City challenging the legality of the proposed congestion pricing plan for vehicles entering the Central Business District (CBD) below 60th Street in Manhattan.  In December 2023, the NYC Metropolitan Transportation Authority’s Traffic Mobility Review Board voted to adopt a plan to reduce congestion in the CBD and raise revenue to combat ta $25 billion deficit for the MTA’s transit system.

As proposed, the plan would impose a daily fee of $24 or $36 on trucks entering the CBD. The proposed plan is currently in a public comment period; four public hearings are scheduled in February and March.  The MTA had previously indicated it wanted to implement the plan in May 2024, but that date seems uncertain.

The latest lawsuit was brought as a class action by a number of individuals, community groups and borough councilmembers who claim the environmental review completed in justifying the plan was insufficient.  The complaint noted the Federal Highway Administration’s failed to conduct and prepare an Environmental Impact Statement on the plan.  Instead, FHWA published a Finding of No Significant Impact on June 22, 2023 in relation to the environmental consequences of congestion pricing despite the prior publication of a Final Environmental Assessment (“EA”) in May 2023 that found significant adverse environmental consequences.

The MTA is already facing lawsuits from the State of New Jersey, which claims that the congestion pricing plan discriminates against residents of that State who commute into Manhattan, and another case filed earlier this month by the United Federation of Teachers and the Staten Island borough president making similar claims the environmental review was inadequate.

The MTA plan is also seen as a blueprint for other large U.S. cities to consider in implementing congestion pricing requirements in their central business areas.

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