[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13338-13347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7226]




[[Page 13337]]

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Part XI





Department of Transportation





_______________________________________________________________________



Federal Highway Administration



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49 CFR Part 391



Qualifications of Drivers; Vision and Diabetes; Limited Exemptions; 
Final Rule

  Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules 
and Regulations  

[[Page 13338]]


DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 391

[FHWA Docket No. MC-96-2]
RIN 2125-AD73


Qualification of Drivers; Vision and Diabetes; Limited Exemptions

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: The FHWA announces a final determination and final rule to 
allow those drivers currently holding valid waivers from both the 
vision and diabetes standards contained in the Federal Motor Carrier 
Safety Regulations (FMCSRs) to continue to operate in interstate 
commerce after March 31, 1996. This action is directed solely at those 
drivers who have been granted temporary waivers to participate in 
either the Federal vision waiver study or the Federal diabetes waiver 
study, who numbered 2210 and 116, respectively, as of March 1, 1996. 
The FHWA believes that allowing this special group of drivers to 
continue to drive after March 31, 1996, is consistent with the public 
interest and safe operation of commercial motor vehicles (CMV). This 
action is necessary because the waiver program will be terminated on 
March 31, 1996, and without this action, the drivers will no longer be 
qualified to operate in interstate commerce after that date. With this 
final rule, the FHWA allows these drivers to continue operations, 
subject to certain operating conditions. This action also includes a 
technical amendment to relocate an existing provision so that all 
limited exemptions from driver qualification standards can be found in 
the same subpart.

EFFECTIVE DATE: This final rule and technical amendment are effective 
March 31, 1996.

FOR FURTHER INFORMATION CONTACT: The FHWA has established a telephone 
number to receive inquiries regarding this action. Contact Ann Dulaney 
at (703) 448-3094. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., 
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: Section 206(f) of the Motor Carrier Safety 
Act of 1984 (MCSA), Pub. L. No. 98-554, 98 Stat. 2835 (codified at 49 
U.S.C. 31136(e)) allows the Secretary of Transportation to issue 
waivers from the Federal Motor Carrier Safety Regulations only after a 
determination that such waivers are consistent with the public interest 
and the safe operation of CMVs. The safety performance data collected 
under the vision and diabetes waiver programs were used as the basis 
for this determination. Historically, the FHWA has issued limited 
waivers and does not intend to enter into any large scale program of 
exemptions. A separate research effort would form the basis for any 
future adjustments, if warranted, to the current vision and diabetes 
standards.

Vision Waiver Program Background

    The FHWA announced its vision waiver study in a notice of final 
disposition on July 16, 1992 (57 FR 31458). The intent of the program 
was to obtain valuable information on the relationship between visual 
capacity 1 and the ability to operate a CMV safely. This vision 
waiver study program was initiated as part of an overall regulatory 
review of the medical qualification standards applicable to interstate 
CMV drivers. For a complete description of the waiver program, see the 
FHWA's October 6, 1994, notice of determination; request for comments, 
at 59 FR 50887.

    \1\ The current Federal vision standard for CMV drivers 
requires: distant visual acuity of at least 20/40 (Snellen) in each 
eye without corrective lenses or visual acuity separately corrected 
to 20/40 (Snellen) or better with corrective lenses, distant 
binocular acuity of at least 20/40 (Snellen) in both eyes with or 
without corrective lenses, field of vision of at least 70 degrees in 
the horizontal meridian in each eye, and the ability to recognize 
the colors of traffic signals and devices showing standard red, 
green, and amber. 49 CFR 391.41(b)(10).
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A. Court Decision

    On August 2, 1994, the U.S. Court of Appeals for the D.C. Circuit 
found that the agency's determination that the waiver program will not 
adversely affect the safe operation of CMVs lacked empirical support in 
the record and accordingly, the court found that the FHWA failed to 
meet the exacting requirements of section 2505(f) (now 49 U.S.C. 
31136(e)). Advocates for Highway and Auto Safety v. FHWA, 28 F.3d 1288, 
1294. Consequently, the Court concluded that the FHWA's adoption of the 
waiver program was contrary to law, and vacated and remanded the rule 
to the agency.

B. Proceedings After the Court Decision

    On November 17, 1994, the FHWA published a notice of final 
determination in the Federal Register (59 FR 59386) extending the 
validity of the vision waivers through March 31, 1996. The FHWA's 
decision was based, in part, on data collected on the group of waived 
drivers indicating that they had performed and continued to perform 
more safely than drivers in the general population of commercial 
drivers. The notice announced plans to develop and impose more 
stringent performance conditions to further reduce safety risks to the 
waived drivers and highway users. For more complete information on the 
FHWA's actions after the court decision, see 59 FR 50887 (October 6, 
1994) and 61 FR 606 (January 8,1996).

Diabetes Waiver Program Background

    On July 29, 1993, the FHWA published in the Federal Register a 
notice of final disposition allowing certain insulin-using diabetic 
drivers to operate CMVs in interstate commerce for a 3-year period. The 
purpose of the waiver study program was to collect data on the driving 
experience of a group of insulin-using drivers and use that information 
to support amending, if warranted, the current diabetes 
requirement.2 Approximately 140 drivers were accepted into the 
diabetes waiver program. For a complete description of the diabetes 
waiver program, see 57 FR 48011 (October 11, 1992) and 58 FR 40690 
(July 29, 1993).

    \2\  The Federal diabetes standard for CMV drivers requires no 
established medical history or clinical diagnosis of diabetes 
mellitus currently requiring insulin for control. 49 CFR 
391.41(b)(3).
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    The August 2, 1994, court decision in Advocates called into 
question the FHWA's ability to issue waivers to insulin-treated 
diabetic drivers because of the similar approach used to pre-qualify 
drivers for participation in the diabetes waiver program.
    Accordingly, the FHWA notified the diabetes waiver drivers, in 
separate mailings on March 28, 1995, of the court's decision and 
changes to the Vision and Diabetes Waiver Programs that allowed both 
programs to continue until March 31, 1996. The FHWA established 
stricter performance conditions for all participants, and enhanced the 
FHWA's monitoring of the performance of the waived drivers in order to 
ensure compliance with the statutory test as construed by the court.

Comments

    The FHWA has received over 960 separate comments to the docket in 
response to the January 8, 1996, notice of proposed rulemaking (NPRM). 
The majority of comments were from drivers in the waiver programs, 
their families, and employers, all of whom favored the FHWA's proposal 
to allow waived drivers in the vision and diabetes waiver programs to 
continue driving in interstate commerce after March 31,

[[Page 13339]]
1996. Their comments addressed their safe driving records and the 
significant economic and emotional hardships that would likely befall 
them without the relief proposed in the NPRM. Other commenters in favor 
of the proposal include the National Private Truck Council (NPTC), the 
Owner- Operator Independent Drivers Association (OOIDA), the American 
Association of Motor Vehicle Administrators (AAMVA), the State of Utah 
Department of Public Safety, the U.S. Equal Employment Opportunity 
Commission (EEOC), the Disabilities Law Project, the American 
Optometric Association (AOA), Eglis K. Bogdanovics, M.D., the 
International Brotherhood of Teamsters, Teamsters, Chauffeurs, 
Warehousemen and Helpers (Local Union No. 110), Teamsters ``General'' 
(Local Union No. 200), the International Union of Operating Engineers 
(IUOE) and the Institute for Public Representation of the Georgetown 
University Law Center.
    While the majority of the commenters supported the NPRM as 
proposed, some supported it with slight modifications. Some of the 
waived drivers believed that the required medical monitoring, 
especially the requirement for an annual physical examination pursuant 
to Sec. 391.43, instead of every 2 years as is required of other 
drivers, was burdensome, expensive and unnecessary. One supporter 
believed that the proposed level of medical monitoring was insufficient 
and made recommendations for additional monitoring. Other supporters of 
the NPRM contended that the FHWA's proposal did not go far enough and 
urged the FHWA to extend its proposed grandfathering rights to other 
similarly qualified drivers who were not currently participating in the 
waiver programs and/or to amend its physical qualification standards to 
allow individual determination of the ability to drive, rather than 
blanket exclusions.
    Phillips Petroleum Company supported the proposal for drivers 
currently holding vision waivers, but opposed it for those drivers 
holding diabetes waivers, stating that the insulin-using diabetic 
drivers pose a higher medical risk with potentially disastrous 
consequences. The American Trucking Associations (ATA) supported a 
``case-by case review that considered the merits of individual waived 
drivers,'' but opposed the broad issuance of waivers stating that the 
``analysis doesn't justify grandfathering all waived drivers.''
    Four commenters, the Advocates for Highway and Auto Safety (AHAS), 
the Insurance Institute for Highway Safety (IIHS), Philip A. Shelton, 
M.D., and Mr. Bernard Gustavsen, one of the waived drivers, opposed the 
NPRM. The comments of the AHAS and IIHS addressed the reliability and 
accuracy of the FHWA's risk assessment, use of the General Estimate 
System 3 (GES) as a comparison group, existing scientific evidence 
of the increased crash risk of drivers with diabetes and vision-
impairments and other factors which, they contend, support their 
position that the FHWA should not grant grandfather rights to the 
drivers holding a valid Federal vision or diabetes waiver on March 31, 
1996. Dr. Shelton, chairman of the Medical Advisory Board of the 
Department of Motor Vehicles of the State of Connecticut, believed that 
the FHWA's NPRM, as proposed, was without merit and created a 
privileged class of drivers. Mr. Gustavsen stated that he opposed the 
waiver program and believed that all rules and regulations prior to the 
waiver should remain enforced and be carried out to the fullest degree; 
however, it is not clear whether Mr. Gustavsen understands that, 
without his waiver of the current vision standard or grandfather rights 
after March 31, 1996, he would not qualify to operate a CMV in 
interstate commerce.

    \3\ The GES is a national survey conducted by the National 
Highway Traffic Safety Administration and was selected for use as 
the best measure of the prevailing national norm relative to large 
truck accidents.
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    These comments are more fully discussed below.

Discussion of the Comments

A. In Favor

    The Disabilities Law Project, a non-profit law firm representing 
individuals with disabilities including several waived drivers, 
believed that unsafe drivers have been effectively screened out of the 
waiver program and that the good driving performance of these remaining 
drivers as well as the proposed medical monitoring requirements will 
ensure the continued safe driving of this group of drivers. 
Furthermore, this firm believes that the FHWA's proposed actions are 
``consistent with national policy as expressed in the Rehabilitation 
Act of 1973 and the Americans with Disabilities Act to facilitate the 
employment of qualified individuals with disabilities.''
    The NPTC, a national association representing more than 1100 
companies that utilize proprietary trucks in their business activities, 
believed the FHWA's proposal will be an important step in the FHWA's 
overall efforts to establish performance-based standards. It cited the 
drivers safe driving performance and emphasized the need to continue 
the medical monitoring. The NPTC believed ``the conditions FHWA has put 
into place will effectively screen out any unsafe drivers and safeguard 
the operation of CMVs.''
    Egils K. Bogdanovics, M.D., a practicing endocrinologist and board 
member of the American Diabetes Association (Connecticut Affiliate) 
commented as a member of the Medical Advisory Board of the Department 
of Motor Vehicles of the State of Connecticut in support of the NPRM. 
Dr. Bogdanovics stated that he was not surprised by the safe 
performance of the diabetes drivers, and cited the waiver program data 
to support his belief that motivated insulin-treated diabetics can 
``scrupulously avoid hypoglycemia'' and operate CMVs safely.
    The AOA strongly supported the FHWA's proposal to allow the drivers 
in the vision waiver program to continue operating CMVs in interstate 
commerce after March 31,1996; however, they were silent on whether 
waived drivers in the diabetes program should be allowed to continue 
driving. The AOA believed that an examination by an ophthalmologist or 
optometrist as part of the medical requirements for operating under the 
proposed grandfather provision was appropriate.
    The AAMVA commented in support of the NPRM, but expressed some 
reservations concerning the drivers in the diabetes waiver program. 
Specifically, AAMVA was concerned about the potential effects of 
hypoglycemia on CMV drivers. The American Diabetes Association, in 
earlier comments to FHWA docket MC-87-17, noted that mild hypoglycemia 
resulting in minor cognitive effects is not an immediately threatening 
emergency, although it should be addressed immediately by ingesting 
glucose. The FHWA believes that such ingestion can occur quickly and 
without stopping the vehicle. Therefore, it is requiring that the 
diabetic drivers carry a source of rapidly absorbable glucose while 
driving. Individuals with severe hypoglycemic reactions or hypoglycemic 
unawareness were excluded from participating in the program. The FHWA 
believes that today's medical technology for screening individuals for 
severe hypoglycemia and the proposed medical monitoring requirements, 
including an annual examination by a endocrinologist, ensure that such 
individuals will be detected and removed from the pool of diabetic 
drivers operating under Sec. 391.64.
    The OOIDA, a national trade association representing the interests 
of

[[Page 13340]]
a large number of independent owner-operators and professional drivers 
at both the Federal and State level, urged the FHWA to allow the waived 
drivers to continue to operate in interstate commerce, stating that the 
drivers ``have earned the privilege .... as evidenced by their safety 
record.'' The OOIDA also believed that the medical monitoring 
requirements were sound and that the affected drivers would not object 
to these requirements in order to continue driving after March 31,1996.
    The IBT, IUOE, and the EEOC, like OOIDA, supported the FHWA's 
proposal to allow the waived drivers to operate in interstate commerce 
after March 31, 1996, but they also urged the FHWA to move beyond this 
proposed action and change the physical qualification requirements to 
allow individual assessments of a driver's ability to safely operate a 
CMV in interstate commerce. They cited the good driving performance of 
the waived drivers and, therefore, concluded that the drivers were not 
a high risk group.
    Comments in the form of a legal brief were filed on behalf of two 
self-employed interstate truck drivers by the Institute for Public 
Representation of the Georgetown University Law Center. Both of the 
drivers are petitioners in the United States Court of Appeals for the 
8th Circuit, appealing the FHWA's decision to deny them waivers from 
the vision standard. The comments were strongly supportive of the 
proposed action, but strongly critical of the FHWA's failure to extend 
the exemption to all other drivers ``identically situated.'' The brief 
contends that the FHWA has de facto amended the standard, and that the 
two drivers are now qualified under the amended standard.
    The FHWA disagrees that these drivers are ``identically situated.'' 
Since neither has participated in the waiver program, neither has been 
subject to the same performance standards, reporting requirements and 
monitoring. The FHWA also disagrees that the standard has been changed, 
but the agency is continuing its efforts to conduct the research 
necessary to enable it to make the changes that are indicated when that 
work is completed. The remaining arguments made in the comments are 
best left for resolution by the court in the pending litigation.
    The FHWA agrees that this group of drivers is not a high risk group 
and will use their performance data to support allowing them to 
continue driving after March 31, 1996. However, it does not plan to use 
this data for any future adjustments to the vision and diabetes 
standards; nor does the FHWA plan to reopen the waiver programs in 
light of the Court decision in Advocates for Highway and Auto Safety v. 
Federal Highway Administration, (28 F. 3d 1288, D.C. Circuit 1994). The 
FHWA recognizes that there were weaknesses in the waiver study design 
and believes that the waiver study has not produced, by itself, 
sufficient evidence upon which to develop new vision and diabetes 
standards. The waived group of drivers has perform as well as or better 
than a similar group drawn from the general population of CMV drivers 
because of the waiver program preselection criteria and conditions. The 
FHWA's goal is to adopt driver physical qualification standards that 
are more performance-oriented; that is, more reflective of the actual 
physical requirements that foster safe operation of commercial 
vehicles. Therefore, the FHWA has undertaken comprehensive research to 
develop parameters for a more performance-based vision standard for all 
commercial drivers and has initiated plans to conduct a retrospective 
study to examine the risk associated with permitting insulin-using 
diabetic individuals to operate commercial motor vehicles (CMVs).
    Many waived drivers who supported the proposal stated that the 
requirement for an annual physical qualification examination and 
certification, instead of every two years as required for other 
drivers, will be burdensome to drivers both financially and in terms of 
time off from work to get the examination. Other waived drivers 
believed that any further monitoring of their physical condition beyond 
the current requirements for drivers operating in interstate commerce 
is unwarranted for the above stated reasons and because their good 
driving performance proves that they are not a high risk group.
    The FHWA has determined that the requirements for an annual 
physical qualification examination pursuant to Sec. 391.43 and annual 
medical examinations by ophthalmologist or optometrist and 
endocrinologists are not overly burdensome in light of the facts that 
this group of drivers has physical conditions that would otherwise 
disqualify them from interstate operations pursuant to 
Sec. 391.41(b)(10) and Sec. 391.41(b)(3) of the FMCSRs and that an 
individual's medical or physical condition may deteriorate over time. 
In fact, some drivers' waivers were canceled because the disqualifying 
condition for which they were waived had worsened or they had developed 
other medical problems or conditions that caused them to be otherwise 
unqualified pursuant to Sec. 391.41. Therefore, the FHWA will require 
the annual physical qualification examination and certification in 
addition to an annual eye examination for the vision impaired drivers 
and an annual examination by an endocrinologist for diabetic drivers as 
an extra precaution to ensure the continued safe operation of these 
drivers.
    The ATA, a national trade association representing the trucking 
industry, commented in opposition to the broad issuance of waivers, but 
stated it would support a case-by-case evaluation that considered the 
merits of individual waived drivers. Notwithstanding the safe 
performance of the drivers in the waiver program, the FHWA's decision 
to allow this group of vision and diabetes waived drivers to operate 
CMVs in interstate commerce has been and continues to be based on the 
individual assessment of each driver's compliance with the waiver 
program conditions, including driving performance and medical 
requirements. Initially, to determine eligibility for participation in 
the waiver programs, individual determinations were made on the basis 
of complete data submitted. Each driver's application was individually 
examined, any missing information was required to be furnished, and 
each driver was measured against the waiver standards to assure that 
all the conditions were met. Recognizing that this group of waived 
drivers could potentially include some subpar drivers who individually 
would present an unacceptable risk, the FHWA took steps to identify and 
remove such drivers. The FHWA's monitoring systems, which have been in 
effect since the inception of the programs, were later enhanced to more 
promptly identify subpar performers among the waived group to ensure 
that safety was maintained. The FHWA's periodic verification of the 
waived drivers' reported accidents and citations through each driver's 
State motor vehicle record (MVR) was increased to monthly monitoring. 
Additionally, medical reports from the waived drivers have been 
reviewed and verified. Therefore, the FHWA has determined that the 2326 
drivers in the vision and diabetes waiver programs have individually 
merited partial exemption from Secs. 391.41(b)(10) or 391.41(b)(3).
    The ATA commented that the NPRM provided ``too little control'' 
over the drivers in the waiver programs. It suggested that the FHWA 
should augment its proposed monitoring program by requiring (1) Copies 
of the annual physical qualification examination and certification 
pursuant

[[Page 13341]]
to Sec. 391.43 and the medical examinations by the appropriate medical 
specialists be sent directly to the FHWA to be included in a database 
of waived drivers, (2) that information concerning the driver's 
activities at the time of an insulin reaction (hypoglycemia) be 
reported, (3) FHWA notification to each driver 45 days in advance of 
the expiration of the current physical qualification certificate, and 
(4) the medical examiner to provide copies of the required 
certifications to the employer and driver. Although the ATA considered 
the monitoring conditions for operating under the proposed grandfather 
provisions to be the foundation for an appropriate monitoring program, 
the FHWA believes its proposed monitoring program, regarding medical 
requirements and performance, is an extra precaution that enlarges the 
current system of safeguards in place for all CMV drivers in the 
general population. All of the drivers who will be operating under this 
grandfather provision will be subject to State or Federal enforcement 
or licensing sanctions and, in most cases, to the penalty provisions of 
the commercial drivers' license regulations (49 CFR Part 383). 
Furthermore, the FMCSRs currently require the medical examiner to 
provide a copy of the medical certificate to the motor carrier. In 
addition, the FMCSRs do not preclude employing motor carriers, the 
first level enforcers under the regulatory scheme for the FMCSRs, from 
imposing additional requirements to ensure that their drivers meet the 
requirements under Sec. 391.41. Many motor carriers obtain copies of 
the completed medical examination form to keep on file while others 
will require certification by a medical examiner of their choice even 
though the driver has a current medical examiner's certificate. Some 
employers require both. The provisions in Sec. 391.64 will not preclude 
motor carriers or other employers from obtaining additional information 
on employees who will be operating under this grandfather provision.
    Furthermore, the FHWA believes that the entire medical 
determination process can best be delivered through a State-
administered program linked to the issuance and renewal of CDLs. After 
the recent completion of six pilot demonstration programs to verify 
these States' ability to integrate the medical determination process 
with the CDL process, the FHWA recommended that this medical transfer 
to the States be handled through a negotiated rulemaking process to 
begin sometime in the summer 1996. The FHWA believes that merging the 
medical determination process with the CDL process will provide further 
scrutiny of the performance of all commercial drivers. Therefore, the 
FHWA has determined that the monitoring conditions, as outlined in the 
NPRM, are more than adequate to ensure the continued safe operation of 
these drivers when viewed in the framework of the safeguards in place 
for monitoring all commercial drivers. The proposed monitoring 
conditions will provide safeguards for employers while not imposing an 
undue burden on the grandfathered drivers.
    The ATA expressed concern over potential changes to the medical 
certificate as a result of this action and in light of additional 
changes that may be forthcoming as a result of the FHWA's plans for 
revising the medical examination form. Although the FHWA finds it 
necessary to change the medical certificate to verify that a driver is 
qualified to operate a CMV by operation under Sec. 391.64, the FHWA is 
sensitive to ATA's concerns regarding an adequate lead time for 
informational changes to forms and to the ATA's economic concerns as a 
result of having to discard large inventories of current forms. 
Therefore, the FHWA will allow the current medical certificate form to 
be used until existing stocks are exhausted or until one year from the 
effective date of the change, whichever comes first, provided that 
medical examiners using existing forms make appropriate handwritten 
notations of the required information on such forms.
    The ATA's comments included a recommendation for a final report on 
the FHWA's waiver programs. The FHWA will prepare a final report of its 
efforts in this area and will give consideration to the ATA's 
suggestions for information to be addressed in the report. The report 
will be placed in the docket.
    The ATA raised several issues concerning the risk assessment used 
by the FHWA to justify granting grandfather rights to the waived 
drivers after March 31, 1996. We believe that the ATA comments contain 
a misunderstanding of the data presented in the Risk Assessment Report. 
It stated that ``in assessing the accident rate of drivers in the 
vision waiver program, it is reported that their rate was below that of 
the general commercial vehicle driver population except for the period 
January to June 1994.'' The ATA is erroneously combining statements 
from two different tables. The NPRM did state that the accident rates 
of these drivers were below that of the general commercial vehicle 
driver population rate. That statement applied to Tables 1 and 2 in the 
Risk Assessment Report which reported the rates for cumulative periods 
of time from the beginning of the program. The accident rate given for 
January to June 1994 (Table 4) was presented in the context of data to 
be used for a trend analysis of independent time periods and no 
comparison was made for that data relative to the general driver 
population. The statement of the higher rate for that period was made 
in the context that it represented a departure from the accident trend 
across time. Even with this departure, the overall accident trend was 
not increasing and, in fact, showed a decreasing trend.
    The ATA also stated that there was a failure to analyze the 
accident experience of the drivers in the two groups, vision and 
diabetes, in the same manner. It is true that the accident rates of the 
two groups were viewed in a different manner relative to the national 
rate, but this was done because the numbers of drivers in the two 
groups were so disparate (over 2,000 in the vision group versus 
slightly more than 100 in the diabetes group) that the same method of 
analysis could not appropriately be used for both. In the vision group, 
confidence intervals were used to relate that group's accident rate to 
the national rate. This was done because the number of drivers was of 
sufficient size that the error of estimate for the accident rate would 
not be so large as to allow the rate to get too much above the national 
rate before safety concerns were alerted. Conversely, the small numbers 
in the diabetes group provide an error of estimate for their accident 
rate which is larger and, as a result, it was determined that the 
actual rate without confidence intervals would be compared to the 
national rate. When the diabetes group's rate became larger than the 
national rate, a more detailed scrutiny of the drivers was made. If the 
lower level of the confidence interval for the vision group's rate had 
become larger than the national rate, a similar type of scrutiny would 
have been done for that group. An overall approach of this type is 
accepted practice to protect patients in clinical trials that 
investigate the therapeutic use of pharmaceutical products.
    The ATA and the AAMVA commented on the proposed requirement that 
the endocrinologist certify that the driver is free of insulin 
reactions (less than one documented, symptomatic hypoglycemic reaction 
per month). The AAMVA misinterpreted this requirement concerning 
hypoglycemia to mean that one hypoglycemic reaction per month

[[Page 13342]]
would be allowed, including severe hypoglycemic reactions. This was not 
the FHWA's intent. The FHWA continues to believe that individuals with 
severe hypoglycemia and hypoglycemia unawareness should be excluded 
from operating CMVs. At the same time, the FHWA believes that mild 
hypoglycemia is not an immediately threatening emergency, although it 
must be addressed within a few minutes by ingesting glucose. The 
reference, ``less than one documented, symptomatic hypoglycemic 
reaction per month,'' was intended to provide guidelines to the 
endocrinologist and medical examiner for evaluating the status of the 
driver's diabetic condition for the preceding 12 months. This reference 
was included because the FHWA was anticipating the question, `` What is 
meant by free of insulin reactions?'' To clarify this issue, the FHWA 
believes that an individual is free of insulin reactions if he or she 
does not have severe hypoglycemia (i.e., episodes of altered 
consciousness requiring the assistance of another person to regain 
control) or hypoglycemia unawareness (i.e., the inability to recognize 
the early symptoms of hypoglycemia), and has less than one documented, 
symptomatic hypoglycemic reaction per month. Any one episode or a 
series of documented, symptomatic hypoglycemia reactions should be 
evaluated in terms of the individual's overall diabetic condition, and 
whether the individual, as a result of such reactions, is likely to 
experience any diminution in driving ability. The FHWA believes that 
the more frequent medical evaluation and self-monitoring requirements 
for operating under Sec. 391.64 will ensure that the drivers operating 
under this grandfather provision who develop severe hypoglycemia or 
hypoglycemia unawareness will be identified and promptly removed from 
the pool of drivers.

B. In Opposition

    The AHAS voiced strong opposition to the FHWA proposal to grant 
grandfather rights to the drivers in the vision and diabetes waiver 
program after March 21, 1996. In addition to rearguing the position it 
took in the court proceedings, the AHAS criticized the proposal to 
grandfather these drivers asserting that the FHWA relied on a 
monitoring program that it characterized as lacking precision and 
containing inaccuracies and inconsistencies. The AHAS stated that the 
comparison of Table 1 and Table 2 in the FHWA Risk Assessment (October 
12, 1995) shows a number of incongruities and that it is difficult to 
perform cross-table comparisons.
    These two tables in the Assessment were not intended to be 
compared. As is stated in the text of the assessment (page 2), Table 1 
is a compilation of data presented in the various monitoring reports 
developed throughout the course of the program. The rates presented in 
that table represent all drivers who were in the program at the time of 
the particular monitoring report. Table 2, on the other hand, is a re-
examination of the accident data for only those drivers who are still 
in the program as of October 1995 (as was stated in the text). Given 
that this is a re-examination of those drivers in October 1995, it is 
possible to retrospectively restructure the dates of accident rate 
presentation with information available at that later date. Since the 
tables were not intended for comparison, given that they are based on 
different sets of drivers at different time periods with different 
retrospective perspectives, the appearance of apparent incongruities is 
not surprising. This misapplication is, unfortunately, exacerbated by 
some typographical errors. In Table 1, the National Accident Rate for 
the June 1994 comparison should be 2.400 instead of 2.422. In addition, 
in Table 2, the year of the national accident rate for the June 1994 
comparison should be 1992 rather than 1993.
    Other apparent inconsistencies identified by AHAS are explained on 
the basis of how data are reported to GES and to the waiver program. 
For example, the AHAS stated that the national accident rate used for 
June 1993 (the 1991 rate of 2.13) is different from that used just two 
months later for August 1993 (the 1992 rate of 2.40). The use of 
different rates is related to the availability of data from GES. The 
results of the GES data acquisition process for any year usually become 
available in late summer or early fall for the subsequent year. The 
1992 GES data were not available in June 1993 but became available by 
August 1993.
    The AHAS also pointed out that, for June 1994, the smaller number 
of drivers in Table 2 had a larger number of accidents (293) than the 
number of drivers in Table 1 for that date (292). This is explained by 
the nature of delays in reporting. The accidents reported in June 1994 
in Table 1 are for the complete reporting period prior to that date. 
The data reported in Table 2 is taken from complete data reported as of 
October 1995.
    The AHAS has also observed that the drivers remaining in the 
program (Table 2) have persistently higher accident rates than those 
shown when the program had fuller participation. The fuller program 
data presented in the past contains drivers whose waivers were 
subsequently revoked for a variety of reasons, only one of which was 
prompted by the driver having an accident with a citation. Having an 
accident with a citation is a relatively rare event, and the 
preponderance of revocations occurs for reporting problems, such as 
failure to report medical evaluations, mileage, violations, and other 
required data. When these individuals are removed from the program, 
their vehicle miles traveled (VMT) are also removed from reports but, 
unless they also had accidents, there is no reduction in the overall 
number of accidents reported. Therefore, the accident rates per million 
VMT will naturally increase. Even with this increase, however, the 
accident rates of those remaining in the vision waiver group are still 
considerably lower than the national rate.
    The AHAS has made several statements alluding to the inadequacy of 
the study design in the diabetes waiver program. The AHAS claimed that 
the inadequacies of the design undermine the ability of the FHWA to 
draw inferences from the results. The AHAS' understanding of the 
activities surrounding the diabetes waiver is inaccurate. The FHWA is 
not presently conducting a study to generalize the feasibility of 
issuing waivers to diabetic drivers. No inferences about a waiver 
program will be drawn from these results. No research study has been in 
place since the U.S. Court of Appeals' decision, cited above, regarding 
the waiver programs. Since that time, the program has focused on the 
monitoring of the drivers. This means that the procedures of 
inferential research do not apply in this circumstance. In its place, 
monitoring is conducted on multiple levels: in group monitoring to 
compare the waived drivers' accident rates to the national accident 
rate as a warning device, and thereafter, on a case-by-case basis if 
the group monitoring indicates this is necessary.
    Since the FHWA changed the focus of the waiver program, the AHAS's 
comments concerning the study design have been resolved. For example, 
given that no inference is drawn, the size of the sample is irrelevant. 
Also, when the FHWA detects that the group accident rate in a 
monitoring report exceeds the national rate, it is not contrary to 
study methodology to use a case-by-case review, because the monitoring 
effort is not a study. Moving to a case review is a prudent step in the 
monitoring process. It is the same process as that

[[Page 13343]]
used in clinical trials to protect patient safety.
    The AHAS stated that the conduct of case reviews is not a valid 
means of conducting statistical analysis. In the context explained 
above, this claim is clearly not relevant since the focus of the data 
presentation in the diabetes monitoring report was comparative and not 
a statistical analysis with such facets as confidence intervals.
    The AHAS also stated that case-by-case evaluations are entirely 
subjective since they are not based on such methods as accident 
reconstruction. The contrast offered here is hardly valid because 
accident reconstruction also has subjective components and is therefore 
not entirely objective. In like manner, the case level analysis 
conducted by the FHWA is not entirely subjective. The analysis at that 
level seeks to determine if the reporting police officer has issued a 
citation indicating that the driver may be at fault. The analysis also 
examines the accident report to detect if there is any evidence of 
driving behavior that could potentially indicate a hypoglycemic event, 
such as crossing the median, swerving, or driving off the road. In the 
cases where medical attention is given to the waivered driver, reports 
on glucose levels are obtained. Therefore, both methods involved some 
analytical decision making based on evidence.
    The AHAS stated that the FHWA does not review GES data to eliminate 
accidents in which the truck driver was at fault. It is true that the 
FHWA did not do this, however, the FHWA did not compare the at-fault 
accident rate of the diabetic group to the GES data. A comparison was 
made for accidents when one vehicle was towed from the scene. This rate 
for the diabetes group was 0.783. It was pointed out by the Insurance 
Institute for Highway Safety that the rate should be compared with the 
national rate for tow away accidents, which was estimated by the 
University of Michigan's Transportation Research Institute (UMTRI) to 
be 0.911. In this case, the diabetes group's rate is lower than the 
national rate (0.783 vs 0.911).
    The AHAS stated that there is a problem in the reporting process 
which involves a lag-time in revealing accidents in the diabetes waiver 
program. The FHWA recognizes that there is a lag in reporting accidents 
in the monitoring report, but notes that there is no lag in examining 
accidents as they are reported to the FHWA. The lag in reporting in the 
monitoring report is due to the delay in the reporting of vehicle miles 
traveled. Since the initial focus of the monitoring report is to 
compare the group accident rate to the national rate, it is necessary 
to have complete mileage data to construct the group accident rate. The 
accidents that are combined with relevant mileage must be from the same 
period of time, and mileage data reports lag behind the accident 
reports. Accidents must be reported within 15 days of their occurrence. 
Since accidents occur at random times, it is not possible to have 
mileage reported concurrently with accidents. However, since the 
accidents are usually reported first, they are examined to determine if 
action should be taken relative to a particular accident.
    The AHAS commented on its previous objection to the diabetes waiver 
program that pointed out the safety dangers inherent in a plan that 
relies on close monitoring. The FHWA is aware that an individual under 
close or tight control has a greater propensity for episodes of 
hypoglycemia than an individual under less rigid control. However, as 
the FHWA stated in an earlier notice (58 FR 40690), it is not mandating 
tight control for the drivers who will be operating under Sec. 391.64. 
As already mentioned, individuals with severe hypoglycemia or 
hypoglycemia unawareness were excluded from participating in the 
diabetes waiver study program. Such individuals will continue to be 
promptly identified, found unqualified, and removed from this pool of 
drivers by virtue of the more frequent medical evaluation and self-
monitoring conditions for operating under Sec. 391.64.
    The IIHS, in its comments opposing the FHWA's NPRM, stated that 
``evidence continues to mount concerning the increased crash risk of 
drivers with diabetes.'' To support this, it submitted three studies 
(Dionne et al., 1995; Koepsell et al. 1994; Cox et al. 1993) which are 
addressed below. While these studies are well-performed and their 
results are clearly defensible, a closer scrutiny suggests that they 
may not be as conclusive relative to the waiver group as IIHS implies. 
For example, the Dionne (1995) study seems to show that diabetic 
drivers of straight trucks have a 2.4 relative risk of accidents when 
compared to healthy drivers. Taken in isolation, this result is 
compelling. But viewed in the broader context of the study, it is less 
conclusive relative to FHWA's waiver program. In particular, this study 
also examined diabetic drivers of articulated trucks, and there was no 
significant relative risk for that group. The authors of the study 
state that it is difficult to explain why diabetic drivers of straight 
trucks show elevated risk while this result does not hold for 
articulated trucks. They speculate that the different results may be 
due to company owners being more rigorous in their selection of drivers 
for articulated trucks or that the results are due to different levels 
of disease severity in the two groups of diabetic drivers.
    This study does not distinguish between diabetic drivers who are 
treated with insulin and those who are not. The authors also do not 
report the number of diabetic drivers in relation to truck type. In 
addition to not examining the interactive effects of disease severity, 
the potential moderating effects of other factors (e.g., age and 
driving behavior) are not analyzed. Thus, while the results are 
significant in the context of straight trucks, the overall lack of 
specificity strongly suggests that this outcome is preliminary and not 
directly applicable to the waiver group.
    Koepsell et al. (1994) reported that they found more than a two-
fold risk of crashes among diabetic drivers who were 65 years of age or 
older. This would be consistent with the degenerative nature of the 
disease relative to aging. However, the average age of the drivers in 
the diabetes waiver group is slightly over 43 with less than one 
percent (0.85%) 65 or older. That study, therefore, is not directly 
relevant for the present group of drivers.
    Cox et al. (1993) reported that in a group of 25 Type I diabetics 
on a driving simulator, driving performance was significantly disrupted 
under conditions of moderate hypoglycemia. However, it seems reasonable 
that these study conditions, i.e. testing conducted under fasting 
conditions and IV insertions in the arms of individuals being tested, 
would, in and of themselves, affect overall performance. The limited 
relevance of these study findings to the drivers in the FHWA waiver 
programs is best represented by the Cox Study conclusion itself: 
``Because we used a simulator, it is not clear to what extent these 
data can be extrapolated to an individual's actual driving 
performance.''
    Regarding the crash risk of drivers with vision impairments, the 
IIHS cited the Rogers and Janke study of California heavy vehicle 
operators with vision impairments. This was a 1987 study conducted at 
the request of the FHWA. While the study findings for this visually 
impaired group showed that both their accident and conviction rates, 
adjusted for age, were significantly and substantially higher than 
those for visually nonimpaired drivers, the authors concluded that the 
``evidence presented could not be considered compelling in 
substantiating the federal standard, given the lack of good data on

[[Page 13344]]
possible exposure differences.'' Although not cited by the IIHS, 
McKnight et al. (1985) concluded in their study of monocular and 
binocular truck drivers that an individual's style of driving was a 
more predictive measure of accident involvement than was visual status. 
They found that monocular drivers showed deficiencies on a number of 
clinical visual measures, but no differences were found between 
monocular and binocular drivers in tasks of actual driving performance 
(i.e., information interpretation, hazard detection, visual search, 
lane keeping, clearance judgment, and gap judgment).
    The IIHS claimed that there are a number of fallacies in the 
reasoning that lead to the FHWA proposal. As a first fallacy, it 
claimed that the FHWA's reasoning is based on a relatively clean 
individual driving record predicting future low crash risk. The IIHS 
indicated that this reasoning is faulty because a study of crashes in 
California showed that two-thirds of the crashes in one year involved 
drivers who had no accidents in the preceding three years.
    Although this is a cogent result for individual drivers, it is not 
reflective of the analysis conducted by the FHWA in making the 
determination to grandfather this group of drivers. The FHWA has 
determined that the current group, and only this group of drivers, as a 
group, does not present an increased risk on the road. That is, 
individuals may have unpredictable variability in accident behavior 
across time but groups are not necessarily that labile. Groups can have 
stable behavior over time when (1) preselected and (2) closely 
monitored. The FHWA believes that by examining individuals in this 
group, over the past three years, relative to a number of responsible 
behaviors, the surviving group has stable behavior relative to a total 
accident rate, a rate that is consistently lower than the national 
rate. Moreover, when the accident rates of the drivers to be 
grandfathered were examined in six-month periods, a significant 
decreasing trend (page 5, Risk Assessment) was observed. Hence, while 
the prediction of individual crash behavior is problematic, the fact 
that this group has a lower accident rate than the national rates with 
a significantly decreasing trend strongly support the FHWA's 
determination that they will not present increased risk by driving on 
the nation's roads, while being monitored.
    Furthermore, the insurance industry continues to follow a practice 
of setting insurance rates based on accident and conviction information 
that becomes available to them, indicating by industry practice that 
they believe a pattern of convictions and/or accidents does indicate a 
higher risk of a future accident. Of course, the converse is more 
appropriate, i.e., the absence of convictions and/or accidents 
indicates a lower risk of a future accident--the so called ``safe 
driver'' in insurance premium-setting parlance. This is consistent with 
the findings of the many studies cited in the Notice of Final 
Determination of November 17, 1994 (59 FR 59386) which support the 
principle that past behavior, in terms of accidents and convictions, is 
still the best predictor of future performance. Thus the FHWA believes 
that in determining the relative risk of this group of waived drivers, 
the same information being used by the insurance industry is a valid 
measure that should be applied in making this decision regarding 
relative performance of the drivers in this study versus the pool of 
all drivers.
    The IHS also claimed that GES is an inappropriate comparison group. 
It stated that this has been noted by FHWA's consultant, Dr. Thomas 
Songer, who pointed out that such factors as age and driving patterns 
cannot be controlled in this manner of comparison. It is true that 
ancillary factors cannot be controlled through a comparison with GES, 
but the FHWA believes that this type of control is not of primary 
interest in this situation where the decision involves safety on the 
roads in general. For example, a study in which a control group is 
selected, even randomly, and matched to the study group has as its 
intent the achievement of internal validity in the comparison. But, as 
is being increasingly pointed out in medical research where randomized 
trials are the basis of good science, these controlled studies which do 
not specifically address external validity have this as the chief 
potential weakness with their results (U.S. General Accounting Office, 
``Cross Design Synthesis; A New Strategy for Medical Effectiveness 
Research,'' March 1992, GAO/PEMD-92-18). It is believed that external 
validity is of primary concern in the decision to allow this group of 
drivers to continue in their professions and, as a result, GES is the 
best focus for this validity.
    Another fallacy alleged by the IIHS involves the FHWA's statement 
that most waivered drivers are not at fault in their crash involvement. 
It stated that the problem concerns the subjective nature of fault 
determination. The IIHS is correct in this finding and in its claim 
that a waivered driver, while not at fault, could have an impaired 
ability to react quickly. However, the IIHS' claim is not germane here, 
given the behavior of the vision waiver group. Their accident rate, 
even with the foregoing possibility, is still lower than the national 
rate.
    The IIHS is correct in its assertion that the FHWA has improperly 
characterized the GES data. The FHWA was incorrect to state that 
accidents are not included in GES unless one vehicle was towed from the 
accident scene. The diabetes waiver group accident rate of .783 under 
towed vehicle condition should not have been compared to the national 
rate of 2.39. The IIHS was correct in stating that the 0.783 rate 
should have been compared to the more appropriate rate (towaway 
crashes) calculated by UMTRI which was 0.911. However, 0.783 is still 
smaller than 0.911 and the rate ratio involving these two .783/
.911=.859) is less than one. For this particular group of drivers, this 
piece of evidence suggests they are certainly not less safe than the 
average CMV driver.
    The IIHS stated that a limitation of the program was the methods 
used to ascertain crash involvement and traffic violation citations. 
The IIHS stated that self-reporting of crashes and violations is 
problematic and the primary source of verification, motor vehicle 
records, is less than complete. It is true that self- reporting can be 
problematic and requires some form of verification. At present, the 
FHWA verifies the waivered drivers' accident and violation reports in 
three ways. In some cases, driver MVRs and driving histories are 
obtained directly from States. Verification is also conducted by 
obtaining driver records through a commercial provider that does 
screening for automobile and truck rental companies and insurers. In 
addition, the FHWA is able to obtain driver histories by querying the 
Commercial Driver License Information System (CDLIS). The CDLIS is a 
component of the national CDL program which has as one of its 
procedures the requirement that States communicate the relevant 
accident and violation information for out-of-State drivers to the 
State of their licensing.
    The IIHS' comments that jurisdictions ``are not forwarding all the 
convictions to the primary licensing'' jurisdiction is an acknowledged 
traffic record problem. However, for CDL drivers this is now an issue 
subject to State compliance requirements. It is being addressed as part 
of the overall effectiveness of the CDL program. There are a number of 
efforts underway addressing the issue of convicting jurisdiction 
reporting to the licensing jurisdiction, including efforts to increase 
the awareness of various police organizations and courts regarding the 
requirements of the CDL

[[Page 13345]]
program. The FHWA will continue to vigorously pursue this issue for all 
licensees.

Determination

    After a thorough review of the comments submitted in response to 
the January 8, 1996, NPRM, the FHWA believes that grandfathering this 
group of waived drivers to continue operating CMVs in interstate 
commerce, subject to the operating conditions under Sec. 391.64, is 
consistent with the public interest and the safe operation of CMVs, in 
accordance with the Motor Carrier Safety Act of 1984 (49 U.S.C. 
31136(e) (1994)).
    The FHWA has documented the safe driving performance over a six-
year period for the vision waived drivers and over a five-year period 
for diabetes waived drivers and determined that this group of waived 
drivers will be allowed to continue driving in interstate commerce 
after March 31, 1996, based on continuous and sustained safe 
performance as a group. The underlying basis for this action is the 
performance data gathered to date and risk analysis performed on this 
data that show that the continued operation of both waived groups of 
drivers, who total 2326 as of March 1, 1996, will be consistent with 
the public interest and safe operation of CMVs. Prior to being admitted 
into the study, the waiver applicants had to demonstrate a three-year 
period of safe driving performance (i.e., no chargeable accidents and 
no more than one serious traffic violation). Since the program began, 
the data have shown that the driving performance of this group of 
waived drivers is better than the driving performance of all CMV 
drivers collectively, based on data obtained from the General Estimates 
Service (GES). Moreover, each driver in the vision and diabetes waiver 
programs has been closely monitored, in many cases for three years or 
more, and the poorest performers have been eliminated. Coupled with 
their 3-year good driving record preceding the waivers, their continued 
good driving during the waiver program has earned these drivers 
individually partial exemption from Secs. 391.41(b)(10) and 
391.41(b)(3), respectively.
    In addition, the FHWA believes that the continued employment of 
individuals with demonstrated safe driving records is in the public's 
interest by allowing these individuals to gain employment in 
occupations of their choice, by promoting economic viability and 
furthering national policy and legislative goals articulated in both 
the Rehabilitation Act of 1973 and the Americans with Disabilities Act 
of 1992.
    Therefore, the FHWA hereby amends 49 CFR part 391 to grant 
grandfather rights to all drivers holding a valid Federal vision or 
diabetes waiver on March 31, 1996. Under the grandfather provision, the 
FHWA will allow only those drivers who have been granted temporary 
waivers to participate in the Federal vision and diabetes waiver 
programs, numbering 2326 as of March 1, 1996, to continue to operate in 
interstate commerce beyond March 31, 1996, subject to certain operating 
conditions. This action will provide relief to these drivers who, 
notwithstanding the demonstrated abilities of the group, would 
otherwise not be permitted to operate a CMV in interstate commerce. 
These grandfather provisions are conditional, in order to ensure the 
continued safe operation of these drivers. In addition to the 
conditions regarding medical requirements discussed below, the FHWA 
will monitor the performance of these drivers through periodic checks.

Medical Requirements for Operating Under This Grandfather Provision

    The FHWA recognizes that any person's medical or physical condition 
may deteriorate over time. Consequently, the FHWA will require a 
physical examination every year under Sec. 391.43, instead of every 2 
years as is required of other drivers, as an extra precaution to ensure 
the continued safe operation of these drivers. Under this provision, 
the waived drivers, like all other interstate drivers, must be 
otherwise physically qualified pursuant to Sec. 391.41 of the FMCSRs.
    In addition, in this final rule, the FHWA requires the 
grandfathered vision impaired drivers to obtain an annual vision 
examination by an ophthalmologist or optometrist indicating that they 
have been examined within the past two months and that the vision in 
the better eye is at least 20/40 acuity, corrected or uncorrected. This 
information must be submitted to the medical examiner at the time of 
the individual's annual physical qualification examination under part 
391 of the FMCSRs.
    Similarly, diabetic drivers grandfathered as a result of this 
action are required to obtain an annual examination by a board 
certified/eligible endocrinologist who must certify that the driver (1) 
has been examined within the past two months; (2) is free of insulin 
reactions; (3) has the ability and has demonstrated willingness to 
properly monitor and manage his/her diabetes; and (4) does not have a 
diabetic condition that would adversely affect his or her ability to 
operate a CMV. An individual is free of insulin reactions if he or she 
does not have severe hypoglycemia (i.e., episodes of altered 
consciousness requiring the assistance of another person to regain 
control) or hypoglycemia unawareness (i.e., the inability to recognize 
the early symptoms of hypoglycemia), and has less than one documented, 
symptomatic hypoglycemic reaction per month. These drivers will be 
required to carry a source of rapidly absorbable glucose and continue 
to monitor their blood glucose using a portable glucose monitoring 
device equipped with a computerized memory one hour prior to driving 
and approximately every four hours while driving. Upon request, the 
driver must submit his or her blood glucose logs to the endocrinologist 
and/or the medical examiner or when otherwise directed by an authorized 
agent of the FHWA. A copy of the endocrinologist's report must be 
submitted to the medical examiner at the time of the annual physical 
qualification examination under part 391 of the FMCSRs.
    This final rule requires this group of drivers to carry a medical 
certificate stating: ``Medically qualified by operation of 49 CFR 
391.64.'' Drivers who do not provide a copy of the required information 
from the ophthalmologist/optometrist or the endocrinologist to the 
medical examiner at the time of their annual physical qualification 
examinations cannot be recertified to continue driving a CMV in 
interstate commerce under this grandfather provision.

Technical Amendment

    In this final rule, the FHWA also relocates the provision in part 
391 granting limited exemptions for intra-city zone drivers. The 
current provision, required under the Motor Carrier Act of 1988 (49 
U.S.C. 31136(f)), is codified as paragraph (d) of 49 CFR 391.2, General 
Exemptions. This action redesignates the provision, without any 
substantive change, as Sec. 391.62, where it is more properly included 
in subpart G, Limited Exemptions. Paragraph (d)(5)(i) of 49 CFR 391.2 
is also being deleted as superfluous.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined that this final rule is not a significant 
regulatory action under Executive Order 12866 or under the regulatory 
policies and procedures of the DOT. It is anticipated that the economic 
impact of this rule will be minimal because of its limited application 
and the small number of

[[Page 13346]]
affected drivers. Moreover, this action will not have any permanent 
effect on any existing safety standard. It will merely continue the 
status quo by grandfathering some 2,300 drivers who have been operating 
safely for substantial periods of time. Therefore, a full regulatory 
evaluation is not required.
    The FHWA finds that this final rule is exempt from the 30-day 
delayed effective date requirement of U.S.C. 553(d) because it ``grants 
or recognizes an exemption or relieves a restriction.'' Without this 
action, CMV drivers in the agency's diabetes and vision waiver studies 
would no longer be qualified to operate in interstate commerce after 
March 31, 1996, the date on which these programs would otherwise end. 
This final rule enables these drivers to continue operations, subject 
to certain operating and monitoring conditions, granting an exemption 
to the vision and diabetes standards of 49 C.F.R. 391.41 that would 
otherwise soon apply to these drivers.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act, 5 U.S.C. 601-
612, the FHWA has evaluated the effects of this final rule on small 
entities. The FHWA believes that this action will not have a 
significant economic impact on a substantial number of small entities 
because this action is directed solely at a limited number and narrowly 
defined population of CMV drivers operating in interstate commerce. 
This action will not cause a major increase in costs or prices and, 
therefore, will not have a significant effect on the Nation's economy.

Executive Order 12612 (Federalism Assessment)

    This rulemaking will amend 49 CFR part 391 pertaining to the 
qualification of CMV drivers. This action will allow CMV drivers who 
currently hold waivers from the Federal vision and diabetes 
requirements to continue operating in interstate commerce after March 
31, 1996. This rulemaking has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12612. Nothing in 
this rulemaking will directly preempt any State law or regulation. This 
rulemaking will not limit the policymaking discretion of the States. 
Therefore, the FHWA has determined that this rulemaking does not have 
sufficient federalism implications to warrant the preparation of a 
separate Federalism Assessment.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities apply to this program.

Paperwork Reduction Act

    This program does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act of 1995, Pub. 
L. 104-13.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects in 49 CFR Part 391

    Driver qualifications, Highway safety, Motor carriers, Reporting 
and recordkeeping requirements, Safety, Transportation.

    Issued on: March 20, 1996.
Rodney E. Slater,
Federal Highway Administration.
    In consideration of the foregoing, the FHWA amends title 49, CFR, 
subtitle B, chapter III, part 391 as set forth below:

PART 391--QUALIFICATIONS OF DRIVERS

    1. The authority citation for part 391 continues to read as 
follows:

    Authority: 49 U.S.C. 504, 31133, 31136, and 31502; and 49 CFR 
1.48.


Sec. 391.2  [Redesignated as Sec. 391.62]

    2. Part 391 is amended by redesignating Sec. 391.2 as Sec. 391.62 
and revising it to read as follows:


Sec. 391.62  Limited exemptions for intra-city zone drivers.

    The provisions of Secs. 391.11(b)(1) and 391.41(b)(1) through 
(b)(11) do not apply to a person who:
    (a) Was otherwise qualified to operate and operated a commercial 
motor vehicle in a municipality or exempt intracity zone thereof 
throughout the one-year period ending November 18, 1988;
    (b) Meets all the other requirements of this section;
    (c) Operates wholly within the exempt intracity zone (as defined in 
49 CFR 390.5);
    (d) Does not operate a vehicle used in the transportation of 
hazardous materials in a quantity requiring placarding under 
regulations issued by the Secretary under 49 U.S.C. chapter 51.; and
    (e) Has a medical or physical condition which:
    (1) Would have prevented such person from operating a commercial 
motor vehicle under the Federal Motor Carrier Safety Regulations 
contained in this subchapter;
    (2) Existed on July 1, 1988, or at the time of the first required 
physical examination after that date; and
    (3) The examining physician has determined this condition has not 
substantially worsened since July 1, 1988, or at the time of the first 
required physical examination after that date.
    3. Section 391.64 is added to read as follows:


Sec. 391.64  Grandfathering for certain drivers participating in vision 
and diabetes waiver study programs.

    (a) The provisions of Sec. 391.41(b)(3) do not apply to a driver 
who was a participant in good standing on March 31, 1996, in a waiver 
study program concerning the operation of commercial motor vehicles by 
insulin-controlled diabetic drivers; provided:
    (1) The driver is physically examined every year, including an 
examination by a board-certified/eligible endocrinologist attesting to 
the fact that the driver is:
    (i) Otherwise qualified under Sec. 391.41;
    (ii) Free of insulin reactions (an individual is free of insulin 
reactions if that individual does not have severe hypoglycemia or 
hypoglycemia unawareness, and has less than one documented, symptomatic 
hypoglycemic reaction per month);
    (iii) Able to and has demonstrated willingness to properly monitor 
and manage his/her diabetes; and
    (iv) Not likely to suffer any diminution in driving ability due to 
his/her diabetic condition.
    (2) The driver agrees to and complies with the following 
conditions:
    (i) A source of rapidly absorbable glucose shalll be carried at all 
times while driving;
    (ii) Blood glucose levels shall be self-monitored one hour prior to 
driving and at least once every four hours while driving or on duty 
prior to driving using a portable glucose monitoring device equipped 
with a computerized memory;
    (iii) Submit blood glucose logs to the endocrinologist or medical 
examiner at the annual examination or when otherwise directed by an 
authorized agent of the FHWA;

[[Page 13347]]

    (iv) Provide a copy of the endocrinologist's report to the medical 
examiner at the time of the annual medical examination; and
    (v) Provide a copy of the annual medical certification to the 
employer for retention in the driver's qualification file and retain a 
copy of the certification on his/her person while driving for 
presentation to a duly authorized Federal, State or local enforcement 
official.
    (b) The provisions of Sec. 391.41(b)(10) do not apply to a driver 
who was a participant in good standing on March 31, 1996, in a waiver 
study program concerning the operation of commercial motor vehicles by 
drivers with visual impairment in one eye; provided:
    (1) The driver is physically examined every year, including an 
examination by an ophthalmologist or optometrist attesting to the fact 
that the driver:
    (i) Is otherwise qualified under Sec. 391.41; and
    (ii) Continues to measure at least 20/40 (Snellen) in the better 
eye.
    (2) The driver provides a copy of the ophthalmologist or 
optometrist report to the medical examiner at the time of the annual 
medical examination.
    (3) The driver provides a copy of the annual medical certification 
to the employer for retention in the driver's qualification file and 
retains a copy of the certification on his/her person while driving for 
presentation to a duly authorized federal, state or local enforcement 
official.
    3. Section 391.43 is amended by redesignating paragraphs (e), (f) 
and (g) as paragraphs (f), (g) and (h), respectively; by adding a new 
paragraph (e); by revising the text preceding the Instructions in newly 
designated paragraph (f) and the text preceding the Certificate in 
newly designated paragraph (h); and by amending the medical examiner's 
certificate form at the end of newly designated paragraph (h) by adding 
a new listing after the words ``______ Qualified only when wearing a 
hearing aid'' to read as follows:


Sec. 391.43  Medical examination; certificate of physical examination.

* * * * *
    (e) Any driver operating under a limited exemption authorized by 
Sec. 391.64 shall furnish the medical examiner with a copy of the 
annual medical findings of the endocrinologist, ophthalmologist or 
optometrist, as required under that section. If the medical examiner 
finds the driver qualified under the limited exemption in Sec. 391.64, 
such fact shall be noted on the Medical Examiner's Certificate.
    (f) The medical examination shall be performed, and its results 
shall be recorded, substantially in accordance with the following 
instructions and examination form. Existing forms may be used until 
current printed supplies are depleted or until March 31, 1997.
* * * * *
    (h) The medical examiner's certificate shall be in accordance with 
the following form. Existing forms may be used until current printed 
supplies are depleted or until March 31, 1997, provided that the 
medical examiner writes down in pen and ink any applicable information 
contained in the following form: MEDICAL EXAMINER'S CERTIFICATE
* * * * *
    __Qualified by operation of 49 CFR 391.64
* * * * *
    4. In Sec. 391.45, paragraph (b)(2) is revised to read as follows:


Sec. 391.45  Persons who must be medically examined and certified.

* * * * *
    (b) * * *
    (2) Any driver authorized to operate a commercial motor vehicle 
only with an exempt intracity zone pursuant to Sec. 391.62, or only by 
operation of the exemption in Sec. 391.64, if such driver has not been 
medically examined and certified as qualified to drive in such zone 
during the preceding 12 months; and
* * * * *

[FR Doc. 96-7226 Filed 3-21-96; 12:03 am]
BILLING CODE 4910-22-P