now and sixteen dash forty one fifty nine owner operator impaired our association versus united states to park transportation good morning and may it please the court my name is paul de colon jr and i represent the petitioners in this matter scott mitchell and the owner a who is a small business trucker and the owner operator independent drivers association based that of grain valley missouri with one hundred sixty thousand small business trucker members from around the country challenge to parts of a final rule related to the medical certification of truck drivers under the rules of the federal motor carrier safety administration the first is f m c s a's action to elevate its so called strictly advisory guidelines from the bottom of the medical exam report to a standalone section of the code of federal regulations appendix a of forty nine c f r part three ninety one without even proposing this action for notice and comment rule making our second argument is that with regard to that rule and the expansion of the beginning of the medical exam the expansion of the health history section of the medical review form in neither instance did the court make a record or provide discussion or rationale why any of those personal medical areas related to driver health and safety or what decisions doctors should make in consideration of those issues what tests should it give the drivers and how much do those tests cost an analysis that should be made available to the public for notic comment rule making and specifically under the motor carrier act forty nine u s c three one one three six c they are required to do a cost benefit analysis of such motor carrier safety rules the first issue presents the same question described by the circuit in the i will league of cities vs case when do agencies layer upon layer of guidance documents and interpretive memoranda ossified to rule like rigidity in is is that the way it is is your argument that this is the sort of evolved into a solid regulation that's mandatory or is your argument more that it the shifting of these advisory guidance statements to a freestanding appendix is the key step that made it legislative regulation it's the first that you describe that evolved from the beginning in the in these tyranny of small decisions into a rule and the second problem that you describe are the result of when the agency acts without the transparency and accountability of a rule making procedure if it does all of these makes all of these changes and and decisions without notice and comment and accountability so it's one thing to say it's evolved it's another thing to sit walk me through exactly what it is that the agency has done in what you're describing for lack of a better phrase a little many steps to ultimately end up with this legislative regulation name for me what those little steps are that you're saying have resulted in improper rule make two and they're there with me there are about eight or ten of those give me give me your most important ones are the most significant when the medical examination review form was created in by a rule making the new year two thousand it was actually proposed in one nine hundred ninety eight  and in that proposal they had a section on on respiratory conditions and in response to that notice a proposed rule  making the parents against tired truckers brought up the example of sleep apnea and said there should be a test mandated here for sleep at the agency rejected that but in the final rule it added the word sleep apnea to these guidelines at the end of the comment without having proposed it or are discussed why it was there and what should happen respiratory disorder was it that the agency considered it such although we would argue that the other respiratory disorders listed in the proposed rule were more of something that would  itate the driver other than sleepiness the through at the time of their operation of a truck in october in two thousand and five and at that time it may very well have been guidance or an interpretation since it was tacked on the end of a form yeah but it was published in a register of adopted as a rule where youth what do you think i know it says advisory criteria at the top right and you really think it was just advisory that is what the agencies argument is and at the time there was no supervision of medical examiners they self certified they used these forms but the only form that a driver needed was the signature at the bottom saying that they had gone through the procedure in august two thousand and five congress were some regulated by state at that time and now they're regulated by the federal government would go slowly if you were a medical examiner back before the federal government did it you could be licensed by the state and be under their regulatory guidance right you know if you were a doctor filling this out or somebody that was you understand ye you know they may have been that the feds had a had a rule that said this is who you have to be but it was the person who decided for themselves that they fit into that procedure in august two thousand and five congress decided that more  supervision was necessary over medical examiners and it required the f m c essay to establish a registry of fett of medical examiners and provide training and proposed the rules to implement that and they stated that on the section dealing with medical examiner training that it would base the core curriculum specifications on the current regulations and guidelines for conducting medical examinations in april two thousand and twelve the rules finalized in january of two thousand and fifteen f m c s a puts out a bulletin to medical examiners and training organisations regarding of sleep apnea it's in our appendix at pages one zero two and want to two want to five that describes that under the rules medical examiners are intended to examine drivers of sleep apnea as part of the medical exam process and disqualified drivers who the examiner believes are so severely impacted that is likely to interfere with the driver's ability to operate safely this document was not published in any regulatory setting published on the f m t s a's website it but it's referenced in the march tenth two thousand and sixteen sleep apnea nossa proposed rule making and in this recent august withdraw that rule making saying that was going to go forward and make changes to the bulletin and instructions to medical examiners in may tenth two thousand and thirteen the agency proposed the rule at issue here and in april two thousand and thirteen two thousand and fifteen f m c s a finalized the expansion of the health history to include references to sleep apnea and  did the opposite of what it was said it would do with the the guidelines at the end of the review form it proposed to eliminate them from the review form and instead it elevated them to a separate section of the code of federal regulations and at the by this time and then and then during after the commencement of this proceeding the agency in response to a congressional mandate  initiated a rule making on sleep apnea but then withdrew it this past august puzzlingly i would submit stating that medical certification determinations of drivers obstructive sleep apnea are made by the examiners based on the examiners medical judgment rather than a federal regulation or requirement and i'm quoting there if they are going to they're saying that the medical different substantively about the advisory guidance and the appendix say if any of the substance of the the substance has not changed it's the agen activities outside of the scope of the rule making to impose upon medical examiners training in sleep apnea instructing them through bulletins not published here on how they should look at rule making we have described the idea of members have described they're there the result is that truck drivers face unpredictable and expensive and unreliable medical examinations regarding sleep apnea there is no concrete standard issued by the agency there are these bulletins and conferences and there's training and use your own judgment and these and these decisions placed drivers disqualify them from from driving a truck they are being used to deny them medical qualification in the agency recognizes that this is a problem and it's proposed record recommendations on sleep apnea from seventy seven federal register twenty three seven ninety four it says the motor kerry community and medical examiners have requested that f n c essay improve the existing advisory criteria and provide more uniform regular tory guidance on obstructive sleep apnea and f m c essays advance notice of proposed rule making for the sleep apnea rule from march tenth two thousand and sixteen  knowledge that the application of the current sleep apnea criteria is inconsistent depending on the medical expertise of the examiner and they called for new standards from its medical review board its body that it's us outside the transparent and and accountable rule making process to change this shift and shift it was really a is this really a notice a fair notice problem procedural kind of fair notice that is that that is an important that is an important function of the rule making process so that the truck drivers know what kind of tests will be expected of them what they will cost the medical examiners know what standard they are to use and for the public safety we know that there is a particular standard that's applied to all truck drivers without such a standard that would come from a rule making the reason i asked the question in your brief you say you want the court to grant the petition for review and vacate the final rule because of the respondents failed to follow the rule making requirements that's correct  requirements we are better off because the court will have declared that these are not rules and they may not be used to disqualify a driver and they are not medical examiners are not required to  follow such guidelines guidelines are things that do not have a legal impact in this these legal principles apply to all of the guidelines although it's especially true of the sleep apnea because of the congressional mandate that they proceed by rule making and because of all the problems that have come up in the rule in the actual experiences of our clients members missoni may please the court before i address any of the issues brought up by opposing counsel i have one important point to make and it's important because it potentially disposes of this entire petition for a view that is that the petitioners argued particular particularly in their opening brief that they did not get notice and comment an opportunity to comment on the driver's health history and the relocation of guidance and the record shows that they did so in the notice of proposed rule making the agency published the new medical form it had all of the proposed additions to the drivers health history different individuals commented including the petitioners the agency responded to those comments the petitioners filed a petition for reconsideration the agency respond to do that and denied the petition with regard to the advisory guidance the same notice of proposed rule making said that the agency was going to remove the guidance from its previous position at the end of the old form and it was going to relocate it along with several other things that had been in the form to a separate advisory agency guidance document that's all in the notice of proposed rule making the petitioners did not respond to that they did not file any comments on that but the american truckers association had objected to several parts of that and it filed comments and the agency responded to those comments and in the final rule it said ok we are therefore going to put this agency guidance without substantive change in the there's no changes to the text we're going to put it in appendix a two forty nine c f r part three ninety one and that wasn't simply chosen randomly part three ninety one are the physical qualifications those are the regulations properly and acted by the agency no one's challenging them here and those are the regulations that the guidance interpret so that you didn't do a new comment period right on your responding to the eighty eight right we didn't your honor because as the courts particularly the d c circuit have pointed out this leads to an absurd situation if you have to keep issuing a new notice of proposed rule making every time the agency gets comments and decides to respond to those comments by making a change and was that this where this guidance ended up was a logical outgrowth of what the agency proposed they said we're going to put it in a guidance document and at the end of the final rule they put it in a guidance talk to us and statutory terms because logical results aren't statutes i bet but so tell me in terms of the a p a in terms of the review here what is the term you would use for what the agency did though it's the logical outgrowth doctrine your honor get that is and statute  matter of did it give fair notice and i think the way the courts have talked about it is is it reasonably forseeable and in fact it goes back to the supreme court there's a supreme court case on this i think it's called long island care at home it talks about the logical outgrowth doctrine it reasonably foreseeable what the agency ended up doing could you see it from the beginning was it predictable so is it reasonably foreseeable if the agency says we're going to put this guidance in a separate agency guidance document is reasonable that where it ended up going to panix a to the very an appendix appendix to the very part of the very regulations that it interprets is that reasonable is that forseeable and our answer is yes in fact that's an obvious place to put it if you were referring to the regulations for instance you would naturally say oh they are right following the regulations is the appendix it's the agency's guidance and that's where it should be so you know our overarching argument is ok they got notice and comment on the the regulate on the form and the driver's health history they got it on the advisory guidance they didn't petition for in their petition for reconsideration afterwards once they knew where the guidance was they didn't then in their petition for reconsideration say you shouldn't have done that you shouldn't put it there that wasn't fair it was wrong for these reasons they didn't mention the guidance at all in their petition for reconsideration so they had their chance they had their notes and comments that also brings me to the public law one thirteen forty five argument all that that law says is that if the agency if the secretary is going to adopt a screening or testing or treatment  requirement for sleep disorders sleep disorders include sleep apnea then you have to go through notice and comment rule making well we take issue with the notion that this is a test or screening or treatment requirement but even if we assume that that is the case they just went through notice and comment rule making so there is no problem with public law one thirteen forty five here what about the argument that it is harder for the drivers to know what the tests are going to be it's now required to use the medical examination report form correct that was part of the the rule making reform is required now yes and and what have been the how do you respond to that concern your honor my response to that is that actually despite what petitioners say nothing substantive changed here so before this rule was adopted this medical sort of this medical examiners certification integration role for it was adopted by the regulatory standard was the same so the medical examiners had to collect the same type of information they had to ask drivers the same types of questions they had to get at that regulatory standard they had to reach a conclusion they had to transmit it to the agency all the same the advisory guidance didn't change exactly the same the the form which was optional before but again it listed sleep disorders on the form and it still does the advisory guidance had a reference to sleep apnea it still does so all of that was the same so when they say well now there's potentially subject to more tests the answer is no because the the regulatory standard was always that a person is physically qualified to operate the commercial motor vehicle if they have no established medical history or clinical diagnosis of a respiratory dysfunction and not just any kind of respiratory dysfunction it's of a particular level of severity so the the regulation says that is likely to interfere with their ability to operate a commercial motor vehicle safely that's the standard it's been the standard since one nine hundred seventy s and the one question that was added to this driver's health history which says have you had a sleep test is simply getting at that question of do you have an established medical history or clinical diagnosis now petitioner said something about questioning you know whether if i heard correctly whether sleep apnea falls properly within that category of respiratory dysfunction that has been part of the guidance since two thousand and it's not something that the agency made up that is a matter of medical general medical consensus the term sleep apnea means a sation of breathing a pause in breathing so that when you look at that other question that was on the medical for before and it is now as well it asks the driver do you have a sleep disorder have you had pauses in breathing i think that was loud snoring and daytime sleepiness and these are all symptoms of sleep apnea so there is no question in the medical community that sleep apnea is a respiratory dysfunction that it affects your breathing and in fact i think even  the the legislative what limited legislative history there is to that public law one thirteen forty five it describes sleep apnea in exactly those terms it is a breathing related sleep disorder it affects your breathing well your sleeping and let me ask you the same question i asked counsel if if the the petitioner prevails and the final rule is vacated does the it does the situation remain the same or the requirements would they remain the sign yes your honor which actually goes to you know we don't think in our counsel said the difference is now there are no other binding there seems to be an emphasis on  compulsory or mandatory aspect of this what your comment about that we are on of the regulation was always binding the regulation the regulatory standard is what i just described if you had an established clinical history or medicare or medical history or a clinical diagnosis of a respiratory dysfunction including sleep apnea of a particular level severity you were not going to get a certificate not before and not now that did not change and the medical examiners have always been asking the same questions they're trying to elicit answers from the driver that give them enough information to decide if the driver meets that standard right so that doesn't change and if you got rid of this driver's health history you go back then to the old driver's health history and it still had the question about sleep disorders so the the medical examiner was going to ask those same questions because that's the regulatory standard now if you if the petitioners are saying you get rid of the the appendix well if you get rid of that appendix that has the guidance in it then you're and you're going back to the old form well guidance was on that form so it's no different and it's actually a little bit puzzling to us because so little changed in here that had anything to do with sleep apnea that would just go back to the old form where the information on appendix a would then be sent back to where it was originally yes or i so i mean one could say that previous form was not mandatory it was it was optional but all the same information was there and more importantly for the regulatory standard the medical examiner was always supposed to be asking those types of questions but then he makes his decision he makes his determination about that individual driver based on his reasonable medical judgment and expertise maybe i'll follow up on the previous question is there something that is concerning about the fact that it's that form is now mandatory well actually your honor they didn't they didn't challenge anything about the mandatory nature of the form it seems like that's part of the argument that because it's mandatory now and it wasn't before i would just come back to the same you know that i want to repeat myself to the court but the standards are the same and it didn't matter before whether the medical examiner used his own form or the agency's form he was always supposed to be getting that information from the driver in order to make an informed determination you know you can't make a determination about whether there's been you know an established medical history or a clinical diagnosis unless you ask if you've ever had those types of tests as has anybody ever said to you that you might have sleep apnea these are the kinds of questions that a doctor would ask to see if there's an established medical history that doesn't change so i would just quickly mention and we we address standing in our in our brief and if the court had any questions about it then i'd be happy to address them but otherwise i would say that the petitioners did allude the lewd now and also more extensively in their reply brief that they have some kind of a more substantive a challenge to the substance of the driver's h history like more of an arbitrary and capricious argument we did not read their opening brief that way we thought this was a purely procedural challenge it was a little strange to us but it is what they had also argued in their petition for reconsideration and we thought they were being consistent that is why we did not address it in our response brief we considered that they had simply put a marker in that they used the phrase arbitrary and capricious in their opening brief but they didn't have any argument there and of course parties cannot do that because otherwise everyone would try to avoid the word limits and they put everything in their reply brief so we did not actually get a chance to address it i would simply highlight to the court that catching this is an arbitrary and capricious challenge is not necessarily helpful to the plaintiffs because then you have to look at did anybody raise the kind of arguments substantive arguments that they are making now and the only ones that were made the only challenges the only comments that were done in the in the  in the rulemaking were they asked about why didn't the agency list specific statutory authority for each question and i see that my time is up take thank you for your argument thank you mr cullum i saw you used your time entirely despite the hints but but let me see if anybody on our panel has questions you have questions questions no questions thank you for your briefing argument case sixteen dash forty one fifty nine is submitted for decision