[Federal Register Volume 61, Number 142 (Tuesday, July 23, 1996)]
[Proposed Rules]
[Pages 38133-38135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18767]



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 first meeting of negotiated rulemaking advisory 


SUMMARY: The FHWA announces the first meeting of an advisory committee 
(the Committee) established 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 
(CDL) procedures of 49 CFR Part 383 and the driver physical 
qualifications requirements of 49 CFR Part 391. The Committee is 
composed of persons who represent the interests that would be 
substantially affected by the rule.

DATES: The first meeting of the advisory committee will begin at 10:00 
a.m. on August 7 and 8, 1996.

ADDRESSES: The first meeting of the advisory committee will be held in 
the Nassif Building, U.S. Department of Transportation, 400 Seventh 
Street, SW., Washington, D.C. Subsequent meetings will be held at 
locations to be announced. The Committee will meet in room 4438 on 
August 7 and rooms 3200-3204 on August 8.

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.



    On April 29, 1996, the FHWA published a notice of intent to 
establish an advisory committee for regulatory negotiation to develop 
regulations governing the proposed merger of the State-administered 
commercial driver's license procedures of 49 CFR Part 383 and the 
driver physical qualifications requirements of 49 CFR Part 391 (61 FR 
18713). The notice requested comment on membership, the interests 
affected by the rulemaking, the issues the Committee should address, 
and the procedures it should follow. The notice also announced the May 
14 public meeting that was sponsored by the agency. This organizational 
meeting was held in order to help identify and select organizations or 
interests to be represented on the Committee.
    The FHWA received 20 comments on the notice of intent. None of the 
comments opposed using regulatory negotiation for this rulemaking; most 
endorsed the process and included requests to serve on the Committee 
and submitted nominations. Based on the responses to the notice of 
intent and for the reasons the FHWA stated in that notice, the 
Department of Transportation has determined that establishing an 
advisory committee on this subject is necessary and in the public 
interest. In accordance with section 9(c) of the Federal Advisory 
Committee Act, the Department of Transportation filed the charter for 
this Committee on July 12, authorizing the Committee to meet and begin 
negotiations. The Department has also selected the members of the 

Negotiated Rulemaking Process


    In the notice of intent, the FHWA stated that it retained the 
services of a contractor, Mr. Philip J. Harter, to act as a convener 
and provide advice on the feasibility of using negotiated rulemaking 
for this rule. The FHWA is pleased to announce that Mr. Harter will be 
the mediator/facilitator of the Commercial Driver Physical 
Qualifications Negotiated Rulemaking Advisory Committee.


    In addition to a mediator/facilitator, the Committee will consist 
of the following members:

Federal Highway Administration
American Association of Motor Vehicle Administrators
New York (State commercial driver licensing agency)
Utah (State commercial driver licensing agency)
Wisconsin (State commercial driver licensing agency)
Montana (State commercial driver licensing agency)
Commercial Vehicle Safety Alliance
International Association of Chiefs of Police
American Trucking Associations
National Private Truck Council
National School Transportation Association
United Motor Coach Association & American Bus Association (sharing one 
seat on the Committee)
Owner Operator Independent Drivers Association
Independent Truckers and Drivers Association
Teamsters Union
Amalgamated Transit Union
Lancer Insurance
AI Transport
American Insurance Association
National Association of Independent Insurers
Advocates for Highway and Auto Safety
Farmland Industries
American College of Occupational and Environmental Medicine
Association for Advancement of Automotive Medicine

[[Page 38134]]

American Academy of Occupational Health Nurses
American Academy of Physicians' Assistants

    The FHWA regrets being unable to accommodate all requests for 
membership on the Committee. The Committee must be kept to a size that 
permits effective negotiation, but that ensures all interests have a 
voice in the negotiation and any ultimate recommendations adopted. 
Although the FHWA would have preferred a smaller committee, the agency 
erred on the side of inclusion to be certain that all interests 
affected by the rulemaking are represented in this process.
    The Negotiated Rulemaking Act provides that agencies should limit 
membership on a negotiated rulemaking committee to 25 members, unless 
the agency head determines that a greater number of members is 
necessary for the functioning of the committee or to achieve balanced 
membership. The FHWA recognizes that representation of all 
significantly affected interests in the negotiation is critical if any 
rule developed through this process is to achieve widespread support. 
Therefore, to best serve all who have a significant stake in the 
outcome of this negotiated rulemaking and to ensure the smooth 
functioning of the negotiation process, we believe that a 26-member 
committee is necessary and justified under the statutory standard cited 
    The agency did not grant Committee membership to all applicants. 
For example, the Georgetown University Law Center--Institute for Public 
Representation and the National Association of the Deaf requested 
membership on the Committee but were not included. The FHWA deliberated 
on these applications and determined that these groups sought inclusion 
on the Committee primarily because of the mistaken belief that the 
scope of these negotiations would extend to a discussion of changes to 
the FHWA's physical qualifications standards. For example, in its 
comments, the Institute for Public Representation stated, ``We assume 
from this [the April 29 notice] that the committee will in fact 
consider the substance of the physical qualification standards.''
    However, as noted in the April 29 notice, the current physical 
qualifications standards will not be a subject for discussion during 
this negotiated rulemaking process; nor will the FHWA's medical waiver 
programs be a subject for negotiation in this proceeding. In light of 
the FHWA's multi-year research plan to systematically review and 
develop revised medical standards, using medical advisory panels, we 
find that the use of this negotiated rulemaking forum to consider 
changing the current medical standards is inappropriate. The Committee 
will only address whether the physical qualification guidelines 
currently used by the agency to implement the current medical standards 
should be modified. Therefore, we believe that the interests of 
disabled drivers operating in interstate commerce in accordance with 
the Federal qualification standards will not be significantly affected 
by this negotiated rulemaking in a way that is different from the 
impacts of this action on the total driver population. Accordingly, the 
interests of these disabled drivers are effectively represented by the 
several driver organizations included on the Committee.
    The FHWA believes that public participation is critical to the 
success of this proceeding. Participation is not limited to Committee 
members. Negotiation sessions will be open to the public, so interested 
parties may observe the negotiations and communicate their views in the 
appropriate time and manner to Committee members. Also, interested 
groups or individuals may have the opportunity to participate with 
working groups of the Committee. The FHWA believes that this form of 
participation will produce meaningful information and lead to a more 
effective commercial driver's license/physical qualifications 
regulation. Of course, the FHWA will invite comment on any proposed 
rule resulting from the Committee's deliberations.

Major Issues

    In the notice of intent, the FHWA tentatively identified potential 
topics to consider in the negotiation and asked for comment on whether 
the issues presented were appropriate and if alternate or additional 
issues should be considered. Most comments were devoted to membership, 
and no significant modifications to the potential topics included in 
the April notice were proposed. Therefore, the list of topics is 
    Those topics are:
    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 
    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 
    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 rulemaking negotiations are underway, Committee members 
may raise other issues.

Procedure and Schedule

    Those who commented on the notice of intent generally did not 
address Committee procedures. The FHWA anticipates that all of the 
negotiation sessions will take place in Washington, D.C. at DOT 
headquarters. Given the FHWA's limited resources, travel outside of 
Washington, D.C. for the purpose of holding negotiation sessions is 
    Consistent with requirements of the Federal Advisory Committee Act, 
a clear and comprehensive record of the Committee's deliberations will 
be kept and circulated to Committee members. The facilitator will 
provide an assistant to the Committee to complete these and other 
    The objective of the negotiation, in the FHWA's view, is for the 
Committee to reach a consensus on how to efficiently and successfully 
transfer responsibility for medical fitness

[[Page 38135]]

determinations to State licensing agencies and produce a draft notice 
of proposed rulemaking for consideration by the agency.
    The negotiation process will proceed according to a schedule of 
specific dates that the Committee devises at the first meeting. The 
FHWA will publish notices of future meetings in the Federal Register. 
The FHWA has provided direct notice of this meeting to all Committee 
members and urges all members to attend and participate in this first 
and important meeting.

    Authority: 5 U.S.C. Secs. 561-570; 5 U.S.C. App. 2 Secs. 1-15.

    Issued on: July 19, 1996.
Stephen E. Barber,
Acting Associate Administrator for Motor Carriers.
[FR Doc. 96-18767 Filed 7-19-96; 12:10 pm]