[Federal Register Volume 71, Number 65 (Wednesday, April 5, 2006)]
[Notices]
[Pages 17157-17159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-4898]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2005-22177]


Qualification of Drivers; Exemption Applications; Diabetes

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition.

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SUMMARY: FMCSA announces its decision to exempt two individuals from 
its rule prohibiting persons with insulin-treated diabetes mellitus 
(ITDM) from operating commercial motor vehicles (CMVs) in interstate 
commerce. The exemptions will enable these individuals to operate CMVs 
in interstate commerce.

DATES: The exemptions are effective April 5, 2006. The exemptions 
expire on April 7, 2008.

FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Chief, Physical 
Qualifications Division, (202) 366-4001, [email protected], 
FMCSA, Department of Transportation, 400 Seventh Street, SW., 
Washington, DC 20590-0001. Office hours are from 8 a.m. to 5 p.m., 
e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    You may see all the comments online through the Document Management 
System (DMS) at: http://dmses.dot.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov and/or Room PL-401 on the 
plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Privacy Act: Anyone may search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or of the person signing the comment, if 
submitted on behalf of an association, business, labor union, or other 
entity). You may review DOT's complete Privacy Act Statement in the 
Federal Register (65 FR 19477, Apr. 11, 2000). This statement is also 
available at http://dms.dot.gov.

Background

Authority To Grant Exemptions

    Section 4007 of the Transportation Equity Act for the 21st Century 
(Public Law 105-178, 112 Stat. 107, June 9, 1998) (TEA-21) amended 49 
U.S.C. 31315 and 31136(e) to provide FMCSA with authority to grant 
exemptions from its safety regulations. On December 8, 1998, the 
Federal Highway Administration's Office of Motor Carriers, the 
predecessor to FMCSA, published an interim final rule implementing 
section 4007 (63 FR 67600). On August 20, 2004, FMCSA published a final 
rule (69 FR 51589) on this subject. By this rule, FMCSA must publish a 
Notice of each exemption request in the Federal Register (49 CFR part 
381), provide the public with an opportunity to inspect the information 
relevant to the application to include any safety analyses that have 
been conducted, and provide an opportunity for public comment on the 
request.
    The Agency must then examine the safety analyses and the public 
comments, and determine whether the exemption would achieve a level of 
safety equivalent to, or greater than, the level that would be achieved 
by complying with the current regulation (49 CFR 381.305). The Agency's 
decision must be published in the Federal Register (49 CFR 381.315(b)). 
If the Agency denies the request, it must state the reason for doing 
so. If the decision is to grant the exemption, the Notice must specify 
the person or class of persons receiving the exemption, and the 
regulatory provision or provisions from which an exemption is being 
granted. The Notice must also specify the effective period of the 
exemption (up to two years), and explain the terms and conditions of 
the exemption. The exemption may be renewed (49 CFR 381.300(b)).

Establishment of FMCSA's Diabetes Exemption Program

    FMCSA published a Notice of intent to issue exemptions to drivers 
with ITDM on July 31, 2001 (66 FR 39548). On September 3, 2003, the 
Agency published a Notice of final disposition announcing its decision 
to issue exemptions to certain insulin-using diabetic drivers of CMVs 
from the diabetes mellitus prohibition under 49 CFR 391.41(b)(3). [68 
FR 5241] (``2003 Notice''). The 2003 Notice explained that in 
considering exemptions, FMCSA must ensure that the issuance of diabetes 
exemptions will not be contrary to the public interest and that the 
exemption achieves an acceptable level of safety. The Agency indicated 
it will only grant exemptions to insulin-using diabetic drivers that 
meet the eligibility criteria provided in its notice of final 
disposition.
    Because FMCSA established eligibility criteria for use in 
determining whether the granting of a diabetes exemption would achieve 
the requisite level of safety, the Agency only publishes for public 
comment, the names of exemption applicants that satisfy the eligibility 
requirements, based upon the information provided by the applicant. 
Applicants that do not meet the requirements are notified by letter 
that their applications are denied and the Agency periodically 
publishes the names of those individuals to satisfy the statutory 
requirement for disclosing such information to the public.

Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users (SAFETEA-LU)

    Section 4129 of SAFETEA-LU (Public Law 109-59, 119 Stat., August 
10, 2005) required FMCSA to revise its diabetes exemption program 
established on September 3, 2003 (68 FR 52441). The revision must 
provide for individual assessment of drivers with ITDM, and be 
consistent with the criteria described in section 4018 of TEA-21.\1\ 
Section 4129 required two substantive changes to be made in the 
exemption process set out in the 2003 Notice.
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    \1\ Section 4129(a) refers to the 2003 notice as a ``final 
rule.'' However, as indicated above, the 2003 Notice did not issue a 
``final rule'' but did establish the procedures and standards for 
issuing exemptions for drivers with ITDM.
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    In response to section 4129, FMCSA made immediate revisions to the 
diabetes exemption program established

[[Page 17158]]

by the September 3, 2003 Notice. These revisions by FMCSA were 
necessary to respond to the specific changes mandated by section 
4129(b) and (c). The changes are: (1) The elimination of the 
requirement for three years of experience operating CMVs while being 
treated with insulin; and (2) the establishment of a specified minimum 
period of insulin use to demonstrate stable control of diabetes before 
being allowed to operate a CMV. Section 4129(d) also directed FMCSA to 
ensure that CMV drivers with ITDM are not held to a higher standard 
than other drivers, with the exception of limited operating, monitoring 
and medical requirements that are deemed medically necessary. FMCSA 
concluded that all of the operating, monitoring and medical 
requirements set out in the 2003 Notice, except as modified, were in 
compliance with section 4129(d). Therefore, all of the requirements set 
out in the 2003 Notice, other than those modified in the November 8, 
2005 (70 FR 67777) Federal Register Notice, remain in effect.
    On October 19, 2005, FMCSA published a Notice of receipt of 
diabetes exemption applications from three individuals, and requested 
comments from the public (70 FR 60875). The three individuals are: 
Doyle F. Heiner, James R. Moretz, and Uve J. Witsch. The public comment 
period closed on November 18, 2005. Three comments were received 
through the DMS and one comment was received by telephone in regard to 
Uve. J. Witsch. All comments have been fully considered by FMCSA in 
reaching the final decision whether to grant the exemptions.
    FMCSA has evaluated the eligibility of the three applicants and 
made a determination that granting the exemptions to two of these 
individuals would achieve a level of safety equivalent to, or greater 
than, the level that would be achieved by complying with the current 
regulation 49 CFR 391.41(b)(3). FMCSA is at this time unable to 
determine if granting the third exemption would achieve the same level 
of safety. A request for additional information has been sent to Mr. 
Witsch to assist the Agency in making this determination.

Diabetes Mellitus and Driving Experience of the Applicants

    The Agency established the current standard for diabetes in 1970 
because several risk studies indicated that diabetic drivers had a 
higher rate of crash involvement than the general population. The 
diabetes rule provides that--A person is physically qualified to drive 
a commercial motor vehicle if that person has no established medical 
history or clinical diagnosis of diabetes mellitus currently requiring 
insulin for control (49 CFR 391.41(b)(3)).
    FMCSA established its diabetes exemption program, based on the 
Agency's July 2000 study entitled ``A Report to Congress on the 
Feasibility of a Program to Qualify Individuals with Insulin-Treated 
Diabetes Mellitus to Operate in Interstate Commerce as Directed by the 
Transportation Act for the 21st Century.'' The report concluded that a 
safe and practicable protocol to allow some insulin-treated diabetic 
drivers to operate CMVs is feasible. The 2003 Notice in conjunction 
with the November 8, 2005 (70 FR 67777) Federal Register Notice 
provides the current protocol for allowing such drivers to operate CMVs 
in interstate commerce.
    These three applicants have had ITDM over a range of 5 to 9 years. 
These applicants report no hypoglycemic reaction that resulted in loss 
of consciousness or seizure, that required the assistance of another 
person, or resulted in impaired cognitive function without warning 
symptoms in the past 5 years (with one year of stability following any 
such episode). In each case, an endocrinologist has verified that the 
driver has demonstrated willingness to properly monitor and manage 
their diabetes, received education related to diabetes management, and 
is on a stable insulin regimen. These drivers report no other 
disqualifying conditions, including diabetes-related complications. 
Each meets the vision standard at 49 CFR 391.41(b)(10).
    The qualifications and medical condition of each applicant were 
stated and discussed in detail in the October 19, 2005, Notice (70 FR 
23904). Because there were no docket comments on the specific merits or 
qualifications of any applicant, we have not repeated the individual 
profiles here.

Basis for Exemption Determination

    Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption 
from the diabetes standard in 49 CFR 391.41(b)(3) if the exemption is 
likely to achieve an equivalent or greater level of safety than would 
be achieved without the exemption. The exemption allows the applicants 
to operate CMVs in interstate commerce.
    To evaluate the effect of these exemptions on safety, FMCSA 
considered medical reports about the applicants' ITDM and vision, and 
reviewed the treating endocrinologist's medical opinion related to the 
ability of the driver to safely operate a CMV while using insulin.
    Consequently, FMCSA finds that exempting two of these applicants 
from the diabetes standard in 49 CFR 391.41(b)(3) is likely to achieve 
a level of safety equal to that existing without the exemption. The 
Agency is granting the exemptions for the 2-year period allowed by 49 
U.S.C. 31315 and 31136(e) to Doyle F. Heiner and James R. Moretz. Once 
the Agency has received the requested information from Mr. Witsch, it 
will be reviewed, and a final determination will be published in a 
separate Federal Register Notice.

Conditions and Requirements

    The terms and conditions of the exemption will be provided to the 
applicants in the exemption document.

Discussion of Comments

    FMCSA received three comments in this proceeding through the DMS. 
The comments were considered and are discussed below.
    Heather M. Murphy commented that she does not believe that it is 
fair that an insulin dependent person is now able to receive an 
exemption to drive in interstate commerce without three years of 
driving experience while taking insulin, and individuals applying for a 
Federal vision exemption must still meet this three years of experience 
requirement. She believes that all exemptions should go by the same 
standards and she requests that FMCSA reconsider the Federal vision 
exemption requirements.
    FMCSA recognizes the current differences between the Federal 
Diabetes Exemption Program and the Federal Vision Exemption Program 
related to driving experience criteria. FMCSA has used recent driving 
experience in evaluating future safety, based on several research 
studies designed to correlate past and future driving performance. 
Results of these studies support the principle that the best predictor 
of future performance by a driver is his/her past record of crashes and 
traffic violations. Copies of these studies may be found at docket 
number FMCSA-98-3637. The implementation of SAFETEA-LU mandated the 
removal of the three year driving requirement from the Federal diabetes 
exemption eligibility criteria.
    The Agency has begun initiatives to evaluate if the driving 
experience criteria should remain part of the Federal Vision Exemption 
Program. FMCSA has begun a Federal Vision Exemption Program evaluation. 
One portion of this evaluation will focus on determining if drivers 
with certain

[[Page 17159]]

visual deficiencies are as safe or safer than drivers in the general 
population. FMCSA also published a Federal Register Notice announcing 
the establishment of a Medical Review Board (MRB) on October 3, 2005 
(70 FR 57642). The MRB is scheduled to review the vision standard 
during the third quarter of 2006. The driving experience criteria will 
remain in effect for the Federal Vision Exemption Program until the 
conclusion of these initiatives.
    Two additional comments received were in favor of granting the 
exemptions and supported the approach FMCSA takes in evaluating the 
exemption candidates.

Conclusion

    After considering the comments to the docket and based upon its 
evaluation of the 3 exemption applications, FMCSA exempts Doyle F. 
Heiner and James R. Moretz from the diabetes requirement in 49 CFR 
391.41(b)(3), subject to the conditions listed under ``Conditions and 
Requirements'' above.
    In accordance with 49 U.S.C. 31315 and 31136(e), each exemption 
will be valid for two years unless revoked earlier by FMCSA. The 
exemption will be revoked if: (1) The person fails to comply with the 
terms and conditions of the exemption; (2) the exemption has resulted 
in a lower level of safety than was maintained before it was granted; 
or (3) continuation of the exemption would not be consistent with the 
goals and objectives of 49 U.S.C. 31315 and 31136. If the exemption is 
still effective at the end of the 2-year period, the person may apply 
to the FMCSA for a renewal under procedures in effect at that time.

    Issued on: March 29, 2006.
Rose A. McMurray,
Associate Administrator, Policy and Program Development.
[FR Doc. E6-4898 Filed 4-4-06; 8:45 am]
BILLING CODE 4910-EX-P