[Federal Register Volume 72, Number 110 (Friday, June 8, 2007)]
[Notices]
[Pages 31875-31877]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11120]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2006-26601]


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 seventy-three 
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 June 8, 2007. The exemptions expire 
on June 8, 2009.

FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Chief, Physical 
Qualifications Division, (202) 366-4001, [email protected], FMCSA, 
Room W64-224, Department of Transportation, 1200 New Jersey Avenue, 
SE., Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 
p.m., 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 W12-140 on the 
West Building Ground Floor, 1200 New Jersey Avenue, SE., 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

    On March 16, 2007, FMCSA published a notice of receipt of Federal 
diabetes exemption applications from seventy-four individuals, and 
requested comments from the public (72 FR 12656). The public comment 
period closed on April 16, 2007 and two comments were received.
    FMCSA has evaluated the eligibility of the seventy-four applicants 
and determined that granting the exemptions to seventy-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).
    The Agency subsequently determined that two of the applicants did 
not meet the minimal age criteria outlined in 49 CFR 391.11(b)(1) which 
states that an individual must be at least 21 years old to operate a 
CMV in interstate commerce. The two applicants in question, Michael J. 
Guido and Cameron D. Hubbard will not be granted an exemption at this 
time. However, they can reapply for the exemption after they have 
satisfied the criteria discussed above. The Agency announces a 
correction regarding Robert A. Hartung, a Federal diabetes exemption 
applicant who was first published in a notice for comments on March 1, 
2007 (72 FR 9402). There were no comments to the docket regarding 
granting him an exemption but he was omitted from the notice of final 
disposition that was published on April 30, 2007. Therefore, he will be 
granted an exemption with an effective date of April 30, 2007.

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 drivers with ITDM 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 seventy-three applicants have had ITDM over a range of 1 to 
38 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 March 16, 2007, Federal Register 
Notice (72 FR 12656). Therefore, they will not be repeated in this 
notice.

Basis for Exemption Determination

    Under 49 U.S.C. 31136(e) and 31315, 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 these applicants from the 
diabetes standard in 49 CFR 391.41(b)(3)

[[Page 31876]]

is likely to achieve a level of safety equal to that existing without 
the exemption.

Conditions and Requirements

    The terms and conditions of the exemption will be provided to the 
applicants in the exemption document and they include the following: 
(1) That each individual submit a quarterly monitoring checklist 
completed by the treating endocrinologist as well as an annual 
checklist with a comprehensive medical evaluation; (2) that each 
individual reports within 2 business days of occurrence, all episodes 
of severe hypoglycemia, significant complications, or inability to 
manage diabetes; also, any involvement in an accident or any other 
adverse event in a CMV or personal vehicle, whether or not they are 
related to an episode of hypoglycemia; (3) that each individual provide 
a copy of the ophthalmologist's or optometrist's report to the medical 
examiner at the time of the annual medical examination; and (4) that 
each individual provide a copy of the annual medical certification to 
the employer for retention in the driver's qualification file, or keep 
a copy in his/her driver's qualification file if he/she is self-
employed. The driver must also have a copy of the certification when 
driving, for presentation to a duly authorized Federal, State, or local 
enforcement official.

Discussion of Comments

    FMCSA received two comments in this proceeding. The comments are 
considered and discussed below.
    An anonymous individual stated that Kenneth C. Michael should not 
receive a Federal diabetes exemption because he is both physically and 
cognitively unfit to be on the road due to frequent memory loss and 
debilitating illness.
    Due to the fact that this comment was submitted by an anonymous 
individual and that the allegation of Mr. Michael having a 
``debilitating illness'' was not specifically defined by the submitter 
presents challenges to the Agency in investigating the information 
submitted in the comment. FMCSA has re-evaluated his application and 
all supporting medical documents to determine if there was any 
information present to support the comment submitted. The documentation 
from his endocrinologist supports that he has stable control of his 
diabetes using insulin, and is able to drive a CMV safely. There is no 
indication that he has any other unresolved medical issues.
    The Agency, at this time, has no evidence to support that the 
statement submitted into the docket is valid. The Federal diabetes 
exemption only exempts the individual from 49 CFR 391.41(b)(3), it is 
the responsibility of the medical examiner to determine if the 
individual meets all other physical qualification standards. Therefore, 
FMCSA will require Mr. Michael to submit to the Agency a copy of his 
medical examination certificate as well as a copy of his medical 
examination form as a condition of granting the exemption. FMCSA will 
review the results of that examination report to determine if there is 
any medical information present to support the action of revoking the 
exemption. FMCSA is also willing to evaluate any additional information 
submitted by the public pertaining to this driver's safety at any point 
in time.
    Another anonymous individual feels that the process for the Federal 
diabetes exemption is too long; he also believes that the Agency is 
discriminatory towards drivers with diabetes.
    With regard to the length of time required to obtain a Federal 
exemption, FMCSA is required to publish in the Federal Register the 
name of each eligible individual who applies for a diabetes exemption, 
and request public comment on the application
    The Agency must then review all the comments received and determine 
whether granting the exemption would achieve a level of safety 
equivalent to, or greater than, the level of safety provided by 
compliance with the current diabetes standard. Depending on the 
complexity of the health issues discussed in the application, a final 
decision may take up to 180 days from the date we receive the completed 
application (49 U.S.C. 31136(e) and 31315). We recognize this potential 
6-month waiting period may seem burdensome. However, we must carefully 
evaluate each applicant's request to assess his or her potential safety 
performance. FMCSA notifies all applicants in writing once a final 
decision is made. It is not the intention of FMCSA to impose hardship 
on commercial drivers. CMV drivers are held to a strict physical 
standard because of the extensive skill required to operate large 
trucks and buses and the potential harm these vehicles can cause to 
other motorists. Our safety regulations have a single goal--to reduce 
the number of CMV crashes and fatalities on the Nation's highways.
    FMCSA's exemption process supports drivers with ITDM who seek to 
operate in interstate commerce. In addition, the Federal Motor Carrier 
Safety Regulations (FMCSRs) are not contrary to the Americans with 
Disabilities Act (ADA) of 1990. The mandates of the ADA do not require 
that FMCSA alter the driver qualification requirements contained in 49 
CFR part 391. The Senate report on the ADA, submitted by its Committee 
on Labor and Human Resources, included the following explanation:

    With respect to covered entities subject to rules promulgated by 
the Department of Transportation regarding physical qualifications 
for drivers of certain classifications of motor vehicles, it is the 
Committee's intent that a person with a disability applying for or 
currently holding a job subject to these standards must be able to 
satisfy these physical qualification standards in order to be 
considered a qualified individual with a disability under Title I of 
this legislation. S. Rep. 101-116, at 27 (1989).

    FMSCA relies on the expert medical opinion of the endocrinologist 
and the medical examiner, who are required to analyze individual 
ability to control and manage the diabetic condition, including the 
individual ability and willingness of the driver to monitor blood 
glucose level on an ongoing basis. Until the Agency issues a Final 
Rule, however, insulin-treated diabetic drivers must continue to apply 
for exemptions from FMCSA, and request renewals of such exemptions. 
FMCSA will grant exemptions only to those applicants who meet the 
specific conditions and comply with all the requirements of the 
exemption.

Conclusion

    After considering the comments to the docket, and based upon its 
evaluation of the seventy-three exemption applications, FMCSA exempts, 
Jonathon L. Apuan, Oluwafemi A. Aruwajoye, Scott D. Baroch, David M. 
Beard, Andrew F. Behr, Brian G. Brianard, David A. Broughton, Kelly G. 
Burke, David R. Burton, Michael G. Cary, Esko G. Cate, Richard I. 
Chandler, Stephen R. Clemens, Johnny W. Corbin, Mark T. Cousins, Emory 
B. Duke, Mark K. Eaton, Chad L. Erickson, David E. Farvour, Brian A. 
Foss, Manuel A. Garcia, Marcus B. Garris, John M. Gladu, Sr., William 
H. Grambusch, Kenneth M. Harrelson, Allan R. Harrison, Robert A. 
Hartung, Kendal B. Heath, Randy A. Hicks, Jon D. Huntsinger, Kirk J. 
Janczak, Thomas E. Jannicelli, Curtis L. Jewett, Mark W. Johnson, 
Robbie L. Jones, Lucas J. Jordan, Murl R. Kimmel, Michael D. Landon, ?, 
Patrick B. Lavespere, Aaron W. Lawrence, Scott W. Loucks, Jesse J. 
Louris, Michael G. McIntosh, Gordon L. Mattocks, Kenneth C. Michael, 
David W. Mills, Ellis E. Murdock, Mark E. Murphy, Daniel D. Neale, 
Judith A. Neel, Richard J. Neeman, Danny E. Norment, Marvin H.

[[Page 31877]]

Patterson, John H. Pitts, Kurt L. Podjaski, Lee M. Powell, Samuel N. 
Prindle, Ronald R. Reineke, Marks W. Sadowski, Thomas M. Sandahl, Bruce 
G. Scheffert, Carl W. Smith, Theodore M. Smith, Gilbert E. Strickland, 
John R. Thomas, Everett Tolbert, Kenneth R. Walker, John L. Waite, Jr., 
Donald S. Welch, James W. Williams, Milton L. Worsley, John A. Yarde, 
and Anthony Ybarra from the ITDM standard in 49 CFR 391.41(b)(3), 
subject to the conditions listed under ``Conditions and Requirements'' 
above.
    In accordance with 49 U.S.C. 31136(e) and 31315 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. 31136(e) and 31315. If the exemption is 
still effective at the end of the 2-year period, the person may apply 
to FMCSA for a renewal under procedures in effect at that time.

    Issued on: June 4, 2007.
Larry W. Minor,
Acting Associate Administrator, Policy and Program Development.
 [FR Doc. E7-11120 Filed 6-7-07; 8:45 am]
BILLING CODE 4910-EX-P