[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18713-18717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10548]
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FEDERAL COMMUNICATIONS COMMISSION
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Parts 383 and 391
[FHWA Docket No. MC-93-23]
RIN 2125-AD20
Commercial Driver Physical Qualifications As Part of the
Commercial Driver's License Process
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of intent to form a Negotiated Rulemaking Committee on
Commercial Driver's License (CDL) and Physical Qualifications
Requirements.
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SUMMARY: The FHWA proposes to establish a negotiated rulemaking
advisory committee (the Committee) under the Federal Advisory Committee
Act and the Negotiated Rulemaking Act to consider the relevant issues
and attempt to reach a consensus in developing regulations governing
the proposed merger of the State-administered commercial driver's
license procedures and the driver
[[Page 18714]]
physical qualifications requirements of 49 CFR Part 391. The Committee
would be composed of people who represent the interests that would be
substantially affected by the rule.
The FHWA invites interested parties to comment on the proposal to
establish the Committee and on the proposed membership of the
Committee, and to submit applications or nominations for membership on
the Committee.
DATES: Interested parties may file comments and nominations for
committee membership on or before May 29, 1996.
ADDRESSES: Comments and/or nominations should be sent to FHWA Docket
No. MC-93-23, Room 4232, HCC-10, Office of Chief Counsel, Federal
Highway Administration, 400 Seventh Street, SW., Washington, D.C.
20590. All comments received will be available for examination at the
above address from 8:30 a.m. to 3:30 p.m. e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-addressed, stamped postcard/envelope.
FOR FURTHER INFORMATION CONTACT: Ms. Teresa Doggett, Office of Motor
Carrier Research and Standards, (202) 366-4001, or Ms. Grace Reidy,
Office of Chief Counsel, (202) 366-0834, Federal Highway
Administration, 400 Seventh Street, SW., Washington, D.C. 20590. Office
hours are from 7:45 a.m. to 4:15 p.m. e.t., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
The Secretary of Transportation has authority to establish
standards for physical qualifications that must be met by drivers in
interstate commerce. 49 U.S.C. 31502 and 49 U.S.C. 31136. This
authority is delegated to the Federal Highway Administrator. 49 CFR
1.48. The Federal Motor Carrier Safety Regulations (FMCSRs) set forth
the qualifications of drivers who operate commercial motor vehicles
(CMV) in interstate commerce. 49 CFR 391.11. The Commercial Motor
Vehicle Safety Act of 1986 (CMVSA) provides, in section 12005(a)(8) (49
U.S.C. 31305(a)(8)), that Federal standards may be promulgated to
require issuance of a certification of fitness to operate a CMV to each
person who passes a CDL test and may require such person to have a copy
of such certification in his or her possession whenever operating a
CMV.
In September 1990, the FHWA explored options for giving
responsibility for medical qualification determinations to the State
licensing agencies as part of the CDL process. Six States--Alabama,
Utah, Arizona, North Carolina, Indiana and Missouri--began pilot
programs seeking efficient ways to assure that commercial motor vehicle
drivers meet the Federal physical qualifications requirements before
they are issued a license. The pilots were developed by the FHWA and
its contractors, the Association for the Advancement of Automotive
Medicine and the American Association of Motor Vehicle Administrators,
in conjunction with a committee of State government licensing
officials.
The pilot projects were completed on January 31, 1995, and a final
report was submitted to the agency. The report revealed that the State
driver licensing agencies demonstrated the potential to assume
responsibility for commercial motor vehicle driver medical
qualification determinations as part of the CDL process. However, some
States indicated they would require enabling legislation and additional
funding to administer the process.
Currently, the FMCSRs require that CMV drivers be medically
examined and certified as physically qualified once every two years in
order to operate in interstate commerce. If the driver meets the
Federal physical qualifications requirements, a medical examiner then
issues a medical certificate which indicates that the driver is
qualified to drive. Drivers must carry this certificate while driving
and employers must maintain a copy in the drivers' qualification files.
49 CFR 391.41(a), 391.43, 391.45 and 391.51(b)(1). Enforcement of these
requirements is performed primarily through roadside inspections of
vehicles and drivers or through Federal or State safety compliance
reviews of motor carriers.
In addition, 49 CFR 383.71(a) requires that during the CDL
application process a person who operates or expects to operate in
interstate or foreign commerce, or is otherwise subject to 49 CFR Part
391, shall certify that he or she meets the qualification requirements
contained in 49 CFR Part 391. In practice, some States rely solely on
the drivers' certifications while other States also require drivers who
certify that they meet the qualification requirements of Part 391 to
produce the required medical certificate in order to be issued a CDL.
Before issuing the CDL, a few States also review the medical ``long
form'' that the medical examiner completes to assure that the
regulatory requirements are met.
The FHWA issued an advance notice of proposed rulemaking
(ANPRM)(copy enclosed in Docket File) on July 15, 1994, requesting
comments on merging the CDL and physical qualifications programs. 59 FR
36338. The FHWA stated in the ANPRM that merging the systems would
allow the States to make the physical qualification determinations
prior to issuing a CDL. Under such an approach, the CDL would then be
the sole document a commercial driver would have to carry and would be
evidence that a driver is medically qualified to operate the CMV.
The proposal to merge the medical fitness determination into the
CDL process has several very strong potential benefits. Drivers would
be relieved of the responsibility to carry a medical fitness card, thus
eliminating the potential for such cards to be inadvertently lost,
damaged or destroyed. Enforcement personnel would also have immediate
notice of the medical fitness status of a driver, without the time-
consuming need to refer to and authenticate a separate document.
Carriers would no longer need to maintain driver medical qualification
certificates, as the license document itself would confirm the fitness
of the driver.
In addition, States would be better able to identify unqualified
drivers that currently operate without medical cards or with forged
medical cards. Where questions exist regarding a license applicant, the
driver licensing agency could refer the applicant and the medical
fitness form to the State medical advisory board for further review.
Medical advisory boards are currently in place in many States and are
used to review medical qualifications of passenger car drivers and for
intrastate CMV operators. The agency understands that forty-seven
States currently have either a medical advisory board or some kind of
medical review process for the above-described driver licensing
determinations. In this rulemaking, the FHWA proposes to include
medical determinations involving interstate CMV drivers in existing
State medical review infrastructure programs by taking advantage of
established working practices that are prevalent within State licensing
agencies.
The results of the six-State pilot program provide support for the
benefits of this proposal. The final report found that drivers who did
not meet current medical standards could be readily detected and could
be restricted from driving CMVs entirely or within parameters set by
the driver licensing agency and its medical advisory board. Medical
examiners would be able to contact the driver licensing agency medical
unit or medical advisory board if questions arose during a physical.
The
[[Page 18715]]
review of the fitness qualifications as part of the licensing process
streamlines the procedure and creates a single record for each driver.
The pilot found that fraudulent or expired medical certifications and
the lack of required medical certifications of drivers did not exist in
the six participating States.
In the ANPRM, the FHWA asked interested parties to comment on
specific issues including the feasibility of the ``merger'' concept;
how best to achieve such a system; how to reconcile the differences
between the States' four-year CDL renewal cycle with the FHWA's two-
year medical certificate cycle; whether medical examiners should be
certified to perform examinations; the degree of flexibility States
should have in determining how to implement any new, merged standard;
and the types of resources required by States to implement a new,
merged standard. Seventy-six parties responded to the notice, including
State agencies, for-hire motor carriers, private carriers, safety
advocates, and medical groups.
The responses received from commenters to the ANPRM generally
involved one of five general issues. Because the parties likely to be
interested in this proposed regulation (i.e., State licensing agencies,
carriers, drivers, medical professionals) are fairly well defined, and
the issues identified through the ANPRM are also well defined, the
agency believed that this proposed rulemaking would be a good candidate
for negotiated rulemaking. The range of interested parties and issues
to be addressed are not the only reasons for the decision to initiate a
negotiated rulemaking. The agency is enthusiastic about the opportunity
to work cooperatively with partners in the motor carrier community at
large to discuss this issue and approaches to resolving it in an open
exchange of ideas. The opportunity to engage in face-to-face discussion
of concerns and benefits will hopefully allow for a creative,
cooperative approach to addressing the merger of medical fitness and
licensing decisions.
As referenced earlier, the five general issues identified by the
respondents to the ANPRM were: (1) whether States would have statutory
authority to verify the physical qualifications of a driver; (2)
whether there will be adequate staff available to verify drivers'
compliance with physical qualifications requirements at the time a
license is issued; (3) the feasibility of merging the two-year medical
certificate with the States' four-year licensing cycle; (4) the motor
carrier's role in assuring physical qualifications of the driver; and
(5) the cost of training licensing examiners and/or staffing medical
review boards on the administration of the process.
Comments on the ANPRM included questions on the potential costs to
States of assuming responsibility for verifying medical fitness as part
of CDL issuance or renewal. Some carriers expressed concern that
licensing agencies would be unable to adequately confirm information on
the medical form and suggested that the current carrier responsibility
for driver fitness be maintained. The agency believes that the results
of the six-State pilot program indicate a strong likelihood that States
can assume responsibility for the medical fitness determination
process. This rulemaking will form the basis for addressing the
questions raised by respondents to the ANPRM, as well as other issues
that may be identified as this process continues.
Pursuant to the Negotiated Rulemaking Act, 5 U.S.C. 561-570, the
agency has decided to form a negotiated rulemaking committee. As
discussed earlier, the agency believes that this approach is most
likely to lead to an efficient and successful transfer of
responsibility for medical fitness determinations to State licensing
agencies. Unlike traditional, informal notice and comment rulemaking,
this process will allow for the open exchange of ideas and information
among and between parties with an interest in the outcome of this
issue. The agency believes that in adopting this approach, the process
will lead to creative, innovative approaches to resolving issues that
might not emerge through the individual efforts of commenters to a
docket. The process will still result in the promulgation of a notice
of proposed rulemaking. This will provide an opportunity for comment by
other interested parties and the general public, but the initial
proposal that will be published for comment will reflect the exchange
of ideas and differing proposals that occur in negotiations. One result
of the negotiations will be a better informed commercial motor vehicle
safety community with a fuller understanding of the benefits and
potential problem areas associated with State verification of medical
fitness determinations. This knowledge should help all parties,
including the agency, to develop a more practical, effective means of
dealing with these medical fitness determinations.
Negotiated Rulemaking Process
Conveners
As provided for in 5 U.S.C. 563(b), a convener assists the agency
in identifying the persons or interests that would be significantly
affected by the proposed rule. The convener conducts discussions with
representatives of such interests to identify the issues of concern to
them and to ascertain the feasibility of establishing a negotiated
rulemaking committee.
The FHWA retained the services of a contractor to act as a convener
and provide advice on the feasibility of using a negotiated rulemaking
process for this rule. The convening team met with FHWA officials to
review background information on the issues, including the responses to
the ANPRM, potential interested parties, and objectives of the agency.
Prior to conducting interviews with prospective participants, the
convening team analyzed the views of the various respondents to the
ANPRM and the level of controversy generated by the issues as outlined
in the ANPRM.
The conveners attempted to develop the range of interests that
would be affected by the rule and identify individuals who would be
able to represent or articulate those interests. The conveners then
sought to interview those individuals to determine their views on the
issues involved and whether they would be interested in participating
in the negotiated rulemaking. The convening team sought to determine
whether the negotiated rulemaking process would be effective in
developing the rule. Each party was also asked if there were other
individuals or groups which should be contacted and these additional
parties were also interviewed. Based upon these interviews, the
conveners submitted a convening report (copy enclosed in Docket File)
in December 1995 to the FHWA, recommending that the agency proceed with
the negotiated rulemaking process.
Determination of Need for Negotiated Rulemaking Committee
The purpose of a negotiated rulemaking committee is to develop
consensus on a proposed rule. ``Consensus'' means the unanimous
concurrence among the interests represented on the negotiated
rulemaking committee unless the committee explicitly adopts some other
definition. This requirement also means that the agency itself
participates in the negotiations in a manner similar to that of any
other party.
[[Page 18716]]
Before establishing such a negotiated rulemaking committee, the
Negotiated Rulemaking Act (5 U.S.C. 563(a)) directs the head of an
agency to consider whether:
1. There is a need for the rule;
2. There are a limited number of identifiable interests that will
be significantly affected by the rule;
3. There is a reasonable likelihood that a committee can be
convened with a balanced representation of persons who can adequately
represent those interests and are willing to negotiate in good faith to
reach a consensus on a proposed rule;
4. There is a reasonable likelihood that a committee will reach
consensus on the proposed rule within a fixed period of time;
5. The negotiated rulemaking will not unreasonably delay the
issuance of the notice of proposed rulemaking and the final rule;
6. The agency has adequate resources and is willing to commit such
resources, including technical assistance, to the committee; and
7. The agency, to the maximum extent possible, consistent with its
statutory authority and legal obligations, will use the consensus of
the committee as the basis for the rule proposed by the agency for
notice and comment.
The FHWA believes that all of the requisite negotiated rulemaking
factors are satisfied with regard to the proposal to merge the medical
qualification determination and the CDL processes and that the
negotiating process could provide significant advantages over
conventional informal rulemaking. This determination is based on the
review of the comments to the ANPRM and the convener's report submitted
by the contractor. There is broad consensus among the parties contacted
by the conveners that there are weaknesses in the current medical
qualifications system that can be improved. The potentially affected
interests are limited in number; there are clearly fewer than 25
distinct interests that would be affected by the rule. A balanced
committee representing the various interests at stake in this matter
can be empaneled. The parties contacted by the conveners have expressed
their interests in discussing the issues and believe that there is a
strong likelihood of reaching consensus on the issues within a
reasonable period of time. The FHWA believes that these negotiations
will not delay, but will expedite the rulemaking process since the
negotiations will enable the agency to benefit from the committee
members' practical first-hand insights and knowledge into the operation
of the physical qualifications determinations and the benefits and
costs of integrating those determinations into the licensing process.
Gaining those insights and resolving the controversies surrounding the
identified issues would otherwise take the agency considerably longer
to resolve by using traditional rulemaking. The agency is committed to
facilitating the negotiated rulemaking process and will devote the
necessary resources, including technical assistance, to the Committee.
The member or members of the Committee representing the agency shall
participate in the deliberations and activities of the Committee with
the same rights and responsibilities as other members of the Committee,
and shall be authorized to fully represent the agency in discussions
and negotiations of the Committee. The agency, to the maximum extent
possible, consistent with its statutory authority and legal
obligations, will use the consensus of the Committee as the basis for
the rule proposed by the agency for notice and comment.
Therefore, based on this analysis of the seven factors mentioned
above, the agency has concluded that the use of the negotiated
rulemaking procedure in this case is in the public interest.
Potential Topics for the Negotiated Rulemaking Process
Based on the interviews conducted with potential committee members
and the report provided by the convener, the FHWA proposes that the
following issues would be considered in the negotiated rulemaking
process.
1. Whether the physical qualifications guidelines currently used by
the agency should be modified to more effectively implement the current
medical standards.
2. The scope of any medical qualifications tracking system which
might be used by law enforcement officials, as well as by carriers
interested in medical information that is not currently available.
3. What is the status of the various federally-funded State
Prototype Medical Review pilot programs which explored the merger of
the medical qualifications and licensing processes, and what useful
information can be utilized from these efforts in drafting a rule on
merging CDL and physical qualifications requirements?
4. How much control should various parties have over the medical
review process and should the current commonly-used procedure, in which
a company directs its drivers to physicians it selects, be replaced
entirely or could it simply be modified? For example, should the agency
require drivers to submit a medical long form to employers and the
appropriate State licensing agency instead of replacing the current
system?
5. How can the current physical examination requirements used by
medical providers be clarified? How can these requirements and
guidelines be more effectively communicated to the medical provider
community?
6. Is there a way to allow merger of the separate requirements
without burdening the small operator who moves to another State? In
this case, although the driver's medical certification would still be
valid, he or she might still be required to be recertified in the new
State, thus potentially requiring a new certificate and a corresponding
fee (e.g. medical reciprocity of old certificate to new States).
Once the negotiated rulemaking process begins, Committee members
may raise other issues necessary for successful completion of the
rulemaking.
Potential Participants Who Were Interviewed By Conveners
The following entities were identified as interested parties that
should be included in the negotiated rulemaking process either directly
as members of the Committee or as a part of a broader caucus of similar
or related interests:
Enforcement Groups
Commercial Vehicle Safety Alliance
International Association of Chiefs of Police
State Licensing Agencies
American Association of Motor Vehicle Administrators
Carriers
American Trucking Associations
National Private Truck Council
National School Transportation Association
United Bus Motor Coach Association
American Bus Association
Terra International (Agricultural)
Farmland Industries (Agricultural)
Drivers
Owner-Operators Independent Drivers Association
Independent Truckers and Driver Association
Independent Truck Owner Operator Association
International Brotherhood of Teamsters
Public Interest
Advocates for Highway and Auto Safety
American Automobile Association
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Medical
American College of Occupational and Environmental Medicine
Association for the Advancement of Automotive Medicine
American Association of Occupational Health Nurses
Insurance
Lancer Insurance (Busing Interests)
AI Transportation--AIG (Busing and Trucking)
Insurance Institute for Highway Safety
Proposed Agenda and Schedule
The FHWA anticipates that the negotiated rulemaking committee will
hold six two-day meetings, approximately once a month. The first
committee meeting will focus on such matters as: determining if there
are additional interests that should be represented on the Committee;
identifying issues to be considered; and setting ground rules, a
schedule, and an agenda for future Committee meetings.
Administrative Support
The FHWA's Office of Motor Carrier Research and Standards will
supply logistical, technical, and administrative support to the
Committee. The meetings will be held at the FHWA headquarters in
Washington, D.C. Washington, D.C. is where a majority of the
prospective Committee members are located. In general, Committee
members will be responsible for their own expenses, but the FHWA will
consider requests for compensation in accordance with 5 U.S.C. 568(c).
Applications for Membership on Committee
The FHWA is soliciting comments on this proposal to establish a
negotiated rulemaking advisory committee and on the proposed membership
of the Committee. Persons may apply or nominate another person for
membership on the Committee in accordance with the following
procedures:
Persons who will be significantly affected by the proposed rule and
who believe that their interests will not be adequately represented by
any person on the previously discussed list of potential participants
may apply for, or nominate another person for, membership on the
negotiated rulemaking committee. Each application or nomination shall
include:
1. the name of the applicant or nominee and a description of the
interests such person shall represent;
2. evidence that the applicant or nominee is authorized to
represent parties related to the interests the person proposes to
represent;
3. a written commitment that the applicant or nominee shall
actively participate in good faith in the development of the rule under
consideration; and
4. the reasons that the persons specified in this notice do not
adequately represent the interests of the person submitting the
application or nomination.
Announcement of FHWA Public Meeting
In order to identify and select organizations or interests to be
represented on the Committee, the FHWA will hold a public meeting on
May 14, 1996. The meeting will be held at the Nassif Building, 400 7th
Street, SW, Room 9230, Washington, D.C., at 8:30 a.m. e.t. All parties
interested in this rulemaking, including the potential participants
listed above and parties submitting applications or nominations for
membership, are encouraged to attend this meeting. The convener/
facilitator will also attend this organizational meeting.
As a general rule, the Federal Advisory Committee Act provides that
no advisory committee may meet or take any action until an approved
charter has been filed with the appropriate House and Senate committees
with jurisdiction over the agency using the committee. Only upon the
Secretary of Transportation's approval of the charter and the list of
organizations or interests to be represented on the Committee and the
filing of the charter will the FHWA form the Committee and begin
negotiations.
After review of the comments received in response to this notice
and any additional comments received at the organizational meeting, the
FHWA will issue a final notice announcing the Committee members and the
date of the first Committee meeting.
Authority: [5 U.S.C. 561-570].
Issued on: April 23, 1996.
Rodney E. Slater,
Federal Highway Administrator.
[FR Doc. 96-10548 Filed 4-26-96; 8:45 am]
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