E6-5056. Qualification of Drivers; Exemption Applications; Diabetes

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of final disposition.

SUMMARY:

FMCSA announces its decision to exempt six 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 7, 2006. The exemptions expire on April 7, 2008.

FOR FURTHER INFORMATION CONTACT:

Dr. Mary D. Gunnels, Chief, Physical Qualifications Division, [phone], [e-mail], 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 (Pub. L. 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 who 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 (Pub. L. 109-59, 119 Stat.1728, August 10, 2005) required FMCSA to begin, within 90 days of enactment, to revise the 2003 Notice to allow drivers who use insulin to treat diabetes to operate CMVs in interstate commerce. 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.

In response to section 4129, FMCSA made immediate revisions to the diabetes exemption program established by the 2003 Notice. FMCSA discontinued use of the 3-year driving experience criterion and fulfilled the requirements of section 4129. 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). 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 December 19, 2005, FMCSA published a Notice of receipt of diabetes exemption applications from six individuals, and requested comments from the public (70 FR 75236). The six individuals are: Daryle W. Belcher, William H. Gardner, Roy G. Hill, Anthony D. Izzi, Ronald D. Paul, and Kenneth L. Pogue. The public comment period closed on January 18, 2006. One comment was received, and fully considered by FMCSA in reaching the final decision to grant the exemptions.

FMCSA has evaluated the eligibility of the six applicants and made a determination that granting the exemptions to 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).

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 six applicants have had ITDM over a range of 5 to 30 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 December 19, 2005, Federal Register Notice (70 FR 75236). 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 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 Daryle W. Belcher, William H. Gardner, Roy G. Hill, Anthony D. Izzi, Ronald D. Paul, and Kenneth L. Pogue.

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 one comment in this proceeding. The comment is considered and is discussed below.

Charles A. Johnson commented that he is an insulin dependent diabetic who wanted to obtain a Commercial Driver's License (CDL) and found out the FMCSRs include a blanket prohibition against him doing so. He is shocked that the regulation exists when the advancements in diabetes management are rapid and constant. He is of the opinion that quarterly visits to a diabetes specialist in which the review of Glycosylated hemoglobin (A1c) tests and blood glucose levels are evaluated is sufficient and that copies of A1c information should be required to be forwarded to the state of licensure.

FMCSA is responsible for the establishment and enforcement of physical qualifications standards applicable to drivers who operate CMVs in interstate commerce. The Agency is also responsible for CDL testing and licensing procedures used by the states in issuing CDLs. Drivers who operate CMVs in interstate commerce must meet the Federal physical qualifications standards to obtain a CDL. Drivers who operate exclusively in intrastate commerce are required to comply with the applicable State rules concerning physical qualifications to obtain a CDL.

FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to allow drivers who are not qualified under section 391.41(b)(3) to apply for an exemption from the Federal standard. The Agency must ensure that each exemption would achieve a level of safety equivalent to, or greater than, the level achieved without the exemption. This means that drivers who intend to apply for an exemption should have sufficient medical data, to include a review of blood glucose measurements and hemoglobin A1c information by the treating endocrinologist, and any other relevant information necessary to support a determination by the Agency that granting them exemptions from 391.41(b)(3) would achieve the required level of safety.

Conclusion

After considering the comments to the docket and based upon its evaluation of the 6 exemption applications, FMCSA exempts Daryle W. Belcher, William H. Gardner, Roy G. Hill, Anthony D. Izzi, Ronald D. Paul, and Kenneth L. Pogue 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. 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 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.

Footnotes

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.