[Federal Register: April 7, 2006 (Volume 71, Number 67)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[FMCSA Docket No. FMCSA-2005-22905]
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, (202) 366-4001, email@example.com,
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.
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.
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
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
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.
\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.
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
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
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 [[Page 17945]] 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
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.
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
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.
[FR Doc. E6-5056 Filed 4-6-06; 8:45 am]
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