[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]]
_______________________________________________________________________
Part XI
Department of Transportation
_______________________________________________________________________
Federal Highway Administration
_______________________________________________________________________
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
