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[Federal Register: March 17, 2006 (Volume 71, Number 52)]
[Proposed Rules]
[Page 13801-13805]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17mr06-23] ============================================================
----------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 391 [Docket No. FMCSA-2005-23151]
RIN 2126-AA95 Qualifications of Drivers; Diabetes Standard AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Advance notice of proposed rulemaking (ANPRM); request for comments. ----------------------------------------------------------------------- SUMMARY: FMCSA announces that it is considering whether to amend its
medical qualifications standards to allow the operation of commercial
motor vehicles (CMVs) in interstate commerce by drivers with insulin-
treated diabetes mellitus (ITDM) whose physical conditions are adequate
to allow them to operate safely and without deleterious effects on
their health. At present, drivers with ITDM are required to obtain
exemptions before operating CMVs. Upon completion of this rulemaking,
drivers with ITDM might not be required to apply for exemptions from
the current rule prohibiting such drivers from operating in interstate
commerce. However, unless and until the agency changes the current
standard in this rulemaking, drivers with ITDM are prohibited from
operating CMVs in interstate commerce, unless such individuals have
exemptions from FMCSA. Any action to revise the current standard would
be made in conformity with the changes in FMCSA's existing authority to
establish, review and revise physical and medical qualification
standards for drivers made by the Safe, Accountable, Flexible and
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU),
which added, among other changes, a requirement that the standards be
developed with the assistance of expert medical advice. DATES: You must submit comments concerning this ANPRM on or before June
15, 2006. ADDRESSES: You may submit comments to the DOT Docket Management System
Number in the heading of this document by any of the following methods.
Do not submit the same comments by more than one method. However, in
order to allow effective public participation in this rulemaking before
the comment period deadline, the Agency encourages use of the Web site
that is listed first. It will provide the most efficient and timely
method of receiving and processing your comments. - The Web site: http://dms.dot.gov. Follow the instructions for submitting comments on the DOT electronic docket site.
- Fax: 1-202-493-2251.
- Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-0001.
- Hand Delivery: 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.
- Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting comments.
Instructions: All submissions must include the organization name
and docket number or Regulatory Identification Number for this
regulatory action. Note that all comments received will be posted
without change to http://dms.dot.gov, including any personal
information provided. Refer to the Privacy Act heading for further
information. If addressing a specific request for comments in this
ANPRM, please clearly identify the related section heading or question
number for each topic addressed in your comments. Docket: For access to the docket to read background documents or
comments received, go to http://dms.dot.gov at any time or to 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. Private Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477) or you may visit http://dms.dot.gov. Comments received after the comment closing date will be included
in the docket and the agency will consider late comments to the extent
practicable. FMCSA may, however, issue a notice of proposed rulemaking
at any time after the close of the comment period. FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Chief, Physical
Qualifications Division, FMCSA, 400 [[Page 13802]] Seventh Street, SW., Room 8301, Washington, DC 20590; (202) 366-4001. SUPPLEMENTARY INFORMATION: Copies or abstracts of all documents
referenced in this notice are in the docket for this rulemaking: FMCSA-
2005-23151. Legal Basis for the Rulemaking FMCSA has authority (delegated from the Secretary of Transportation
(Secretary) by 49 CFR 1.73) to establish the minimum qualifications,
including medical and physical qualifications, for drivers of CMVs
operated in interstate commerce. 49 U.S.C. 31136(a)(3) and 31502(b). As
amended by section 4116(b) of SAFETEA-LU, (Pub. L. 109-59, 119 Stat.
1728, Aug. 10, 2005), section 31136(a)(3) requires that, at a minimum,
safety regulations shall ensure that the physical conditions of
operators of CMVs adequately enable them to operate the vehicles safely
and that the periodic physical examinations required of such operators
are performed by medical examiners who have received training in
physical and medical examination standards. These new provisions added by SAFETEA-LU are clearly intended to
ensure that the Federal Motor Carrier Safety Regulations ("FMCSRs")
contain physical qualification standards that reflect the advice of the
agency's newly authorized Medical Review Board and Chief Medical
Examiner. 49 U.S.C. 31149(a) and (b).\1\ Under new section 31149(c),
the Agency, with the advice of the board and the chief medical
examiner, is directed to "establish, review and revise * * * medical
standards for operators of commercial motor vehicles that will ensure
that the physical condition of operators of commercial motor vehicles
is adequate to enable them to operate the vehicles safely." The
purpose of these provisions in section 31149 is to ensure that the
physical and medical qualifications standards for CMV drivers reflect
up-to date, expert medical advice drawn from "expertise in a variety
of medical specialties relevant to the driver fitness requirements."
49 U.S.C. 31149(a)(2) and House Conf. Report No. 109-203 (July 28,
2005) at 990.
--------------------------------------------------------------------------- \1\ New section 31149, added by section 4116(a) of SAFETEA-LU,
becomes effective on August 10, 2006, in accordance with section
4116(f), 119 Stat. 1728, (Aug. 10, 2005) (set out as a note to 49
U.S.C. 31149). However, FMCSA has already announced the
establishment of the Medical Review Board under the Federal Advisory
Committee Act. 70 FR 57642 (Oct. 3, 2005).
--------------------------------------------------------------------------- In addition to the statutory factors that are specific to the
physical qualifications of CMV drivers, FMCSA must also consider
another factor. Any physical and medical qualifications it establishes
or revises must ensure, at a minimum, that "the operation of
commercial motor vehicles does not have a deleterious effect on the
physical condition of operators" as required by 49 U.S.C. 31136(a)(4)
and Public Citizen et al. v. Federal Motor Carrier Safety
Administration, 374 F.3d 1209, 1216 (D.C. Cir. 2004). The D.C. Circuit
noted, in that case however, that it was not "suggest[ing] that the
statute requires the agency to protect driver health to the exclusion
of those other factors [i.e., the costs and benefits of the rule], only
that the agency must consider it." Id. at 1217 (emphasis in original).
In order to properly consider this factor in developing physical
qualifications standards the agency must consider both (1) the effect
of driver health on the safety of commercial motor vehicle operations;
and (2) the effect of such operations on driver health. Finally, before prescribing any regulations, FMCSA must also
consider their "costs and benefits" 49 U.S.C. 31136(c)(2)(A) and
31502(d). Those factors are also discussed in the Rulemaking Analysis
section. History of Federal Regulation of Drivers With Insulin-Treated Diabetes
Mellitus Beginning in 1940, under the Interstate Commerce Commission's Motor
Carrier Safety Regulations (4 FR 2294, June 7, 1939, effective date
January 1, 1940), CMV drivers have been subject to urine glucose tests
as part of medical examinations for determining whether a person is
physically qualified to drive in interstate or foreign commerce.
Starting in 1971 (35 FR 6458, April 22, 1970, effective date January 1,
1971), the Federal Highway Administration (FHWA) (the predecessor to
FMCSA) established the current standard for drivers with ITDM. This
standard states 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). FHWA established the
standard, in consultation with medical advisers, mainly because several
crash studies indicated that drivers with ITDM had higher rates of
crashes compared to the general driving population. FHWA then became engaged in several activities to address the issue
of drivers with ITDM and CMV operation. On March 28, 1977, FHWA
published an ANPRM to solicit comments on the standard for drivers with
ITDM (42 FR 16452). It terminated the rulemaking in November 1977
without amending the standard, after determining that the more
substantive comments and the literature cited in the ANPRM supported
the prohibition against the operation of CMVs by drivers with ITDM
because of highway safety concerns (42 FR 57488). On November 25, 1987,
the agency published a new ANPRM (52 FR 45204) requesting comments on
petitions from two individuals and the American Diabetes Association to
eliminate the blanket prohibition against drivers with ITDM and to
grant waivers on a case-by-case basis. In September 1987, the Conference on Diabetic Disorders and
Commercial Drivers was held to review the drivers with ITDM standard in
light of advances in the care of individuals with ITDM. Conference
participants (physicians, scientists, Federal officials and
representatives from the motor carrier industry) recommended that some
drivers with ITDM could be qualified to drive depending upon insulin
use and under certain conditions (e.g., absence of recurrent
hypoglycemia, safe driving record) (FHWA, Conference on Diabetic
Disorders and Commercial Drivers; Final Report, 1988). Following the
conference, FHWA published a Notice of Proposed Rulemaking (55 FR
41028, Oct. 5, 1990) requesting comments on a proposal to revise the
drivers with ITDM standard to allow individuals with ITDM to operate
CMVs and sponsored a 1990 risk assessment that estimated various levels
of crashes among drivers with ITDM depending upon the severity of
hypoglycemia (Federal Highway Administration, Insulin-using Commercial
Motor Vehicle Drivers, 1992). The level of crashes of drivers with ITDM
was similar to that of drivers without diabetes mellitus. FHWA
published a Notice of Intent to Issue Waivers on October 21, 1992 (57
FR 48011). This led to the July 29, 1993 waiver program (58 FR 40690),
including the waiver requirements that a driver with ITDM have a three-
year safe driving record while using insulin and regular medical
examinations by a board-certified or board-eligible endocrinologist. The diabetes waiver program was terminated in 1996 in response to a
ruling from the U.S. Court of Appeals for the District of Columbia
Circuit. In Advocates for Highway and Auto Safety v. FHWA, 28 F.3d 1288
(D.C. Cir. 1994), the court held that the vision waiver program was not
consistent with the statutory standard that required that a waiver be
``consistent with the safe operation of commercial motor vehicles.'' 28
F.3d at 1293 (quoting former 49 U.S.C. App. 2505(f)). Although the
decision initially affected [[Page 13803]] only the vision waiver program, it had an impact on the diabetes
program because of the similar approach used to determine driver
eligibility. Those drivers holding waivers at the program's termination
were allowed to continue to operate CMVs in interstate commerce under
the grandfather provisions of 49 CFR 391.64. In 1998, section 4018 of the Transportation Equity Act for the 21st
Century, Public Law 105-178, 112 Stat. 413-4 (TEA-21) (set out as a
note to 49 U.S.C. 31305) directed the Secretary to determine the
feasibility to develop "a practicable and cost-effective screening,
operating and monitoring protocol" for allowing drivers with ITDM to
operate CMVs in interstate commerce "that would ensure a level of
safety equal to or greater than that achieved with the current
prohibition on individuals with insulin treated diabetes mellitus
driving such vehicles." As directed by section 4018, FHWA compiled and
evaluated the available research and information. It assembled a panel
of medical experts in the treatment of diabetes to investigate and
report on the issues concerned with the treatment, medical screening
and monitoring of ITDM individuals in the context of operating CMVs.
FMCSA then submitted to Congress in July 2000 a report entitled "A
Report to Congress on the Feasibility of a Program to Qualify
Individuals with Insulin Treated Diabetes Mellitus to Operate
Commercial Motor Vehicles in Interstate Commerce as Directed by the
Transportation Equity Act for the 21st Century, (TEA-21 Report to
Congress). The motor carrier regulatory functions of the FHWA were
transferred to the FMCSA in the Motor Carrier Safety Improvement Act of
1999, Public Law 106-159, 113 Stat. 1748, Dec. 9, 1999. The Report to
Congress concluded that it is feasible to establish a safe and
practicable protocol with three components that would allow some
drivers with ITDM to operate CMVs. The three components included
screening of qualified drivers, establishing operational requirements
ensuring proper disease management by such drivers, and monitoring of
safe driving behavior and proper disease management. For a detailed
discussion of the report's findings and conclusions, refer to the
notice published at 66 FR 39548 (July 31, 2001). The TEA-21 Report to
Congress can be accessed in the docket in the heading of this notice
FMCSA-2005-23151, item 1, in the DOT Docket Management System at:
http://dmses.dot.gov/docimages/p64/139973.tif; or http://dmses.dot.gov/docimages/pdf71/139973_web.pdf; or on
FMCSA's Web site at: http://www.fmcsa.dot.gov/facts-research/research-technology/publications/medreports.htm. As a result of the conclusions found in the TEA-21 Report to
Congress, the July 31, 2001 notice proposed to implement those
conclusions and recommendations by issuing exemptions from the FMCSRs
to allow operations of CMVs by drivers with ITDM. After receiving and
considering comments on the proposed use of exemptions to implement the
TEA-21 Report to Congress, FMCSA issued a Notice of Final Disposition
establishing the procedures and protocols for implementing the
exemptions for drivers with ITDM. 68 FR 52441 (September 3, 2003)
("2003 Notice"). In order to obtain an exemption, a CMV driver with
ITDM must follow the basic requirements for obtaining an exemption set
out in 49 CFR part 381, subpart C. FMCSA may not grant an exemption
unless it would maintain a level of safety equivalent to, or greater
than, the level achieved without the exemption. 49 U.S.C. 31315 and 49
CFR 381.305(a). In conformity with the conclusions of the TEA-21 Report to
Congress, the 2003 Notice implemented, with a few modifications, the
three components of the protocol recommended in the report, to allow
drivers with ITDM to be qualified with an exemption from the FMCSRs to
operate CMVs. FMCSA published the first notice granting exemptions to
four drivers with ITDM on September 2, 2005 (70 FR 52465), after notice
and opportunity for public comment on May 5, 2005 (70 FR 23904). Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU) Section 4129 of SAFETEA-LU 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. Section 4129 required two substantive changes to be made in the
exemption process set out in the 2003 Notice.\2\
--------------------------------------------------------------------------- \2\ 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 order to accomplish these changes within the 90-day time frame
established by section 4129, FMCSA made immediate revisions to the
diabetes exemption program established by the 2003 Notice. These
revisions by FMCSA were necessary to respond to the specific changes
mandated by section 4129(b) and (c). The changes are: (1) Elimination
of the requirement for three years of experience operating CMVs while
being treated with insulin; and (2) 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 Notice in the Federal Register on November 8, 2005 (70
FR 67777), remain in effect. The changes to the exemption program (i.e., elimination of the
requirement for three years of experience and establishment of a
specified minimum period of insulin use) became effective upon
publication of the November 8, 2005 Notice. As this ANPRM indicates,
FMCSA is considering whether to revise the FMCSRs to allow certain
drivers with ITDM to operate CMVs in interstate commerce. Unless and
until the agency issues a final rule, however, drivers with ITDM must
continue to hold exemptions from the application of 49 CFR 391.41(b)(3)
to operate in interstate commerce. Requests for Information and Comments FMCSA requests responses to the following questions, as well as
comments and data on other issues related to CMV drivers with ITDM who
operate in interstate commerce: (1) Currently, CMV drivers with ITDM must hold an exemption from
the ITDM prohibition to operate in interstate commerce. What
modifications to the ITDM prohibition in 49 CFR 391.41 should FMCSA
consider to enable such drivers to operate safely in interstate
commerce without an exemption? (2) How should FMCSA ensure that health care professionals who
might be applying any revised standards do so in a consistent and
appropriate manner which ensures both that the physical conditions of
such drivers are adequate to enable them to operate safely and that [[Page 13804]]
the operation of CMVs is not deleterious to their health? (3) FMCSA also requests public comments on the changes made in the
current exemption program for CMV drivers with ITDM that were made by
the November 8, 2005 Notice. (4) Should FMCSA allow medical examiners to assume responsibility
for making an individual determination of the ITDM driver's ability to
manage this health condition, or should the agency require the
physician responsible for treating the driver's ITDM to certify the
driver meets the revised diabetes standard? (5) Should the agency revise the medical certificate to be issued
by the medical examiner to a driver with ITDM to include certification
from the "treating physician" in addition to the medical examiner? (6) Each medical examiner has discretion to set the expiration date
on a driver's medical certificate so that it is valid for any period up
to 24 months, based on the examiner's determination of how often a
driver needs to be re-examined, such as for a specific health condition
(e.g., hypertension). What should the Federal standard maximum period
of medical certification be for drivers with ITDM? (7) What changes in health condition of drivers with ITDM (e.g.,
hypoglycemia-induced incidents) should be reported? What changes in
crash/incident data (e.g., each crash) should be reported? Who should
be responsible for such reports? To whom should these reports be
submitted? (8) A number of States offer exemption, waiver, or grandfather
programs for drivers with ITDM. Other States do not allow drivers with
ITDM to operate without an exception/exemption. Would States that
prohibit drivers with ITDM from operating CMVs continue to do so or
would States adopt rules comparable with the new Federal standard? How
many drivers with ITDM are currently operating commercially in these
States? If these States have any evidence as to whether ITDM drivers
operating CMVs are as safe, safer, or less safe than non-insulin-
treated diabetic drivers or non-diabetic drivers, FMCSA would like
these States to provide such evidence or identify any sources where
FMCSA may obtain such evidence. Also please describe any analysis that
has been done on these ITDM drivers, and any special oversight that
States conduct. (9) Should new and emerging therapies for treatment of diabetes
mellitus be considered in reviewing and revising the current standard?
If so, how? If a revised FMCSA standard for drivers with ITDM is
established, how would new and emerging therapies, particularly
injectable medications (e.g., incretin mimetics) and continuous
subcutaneous insulin infusion therapy, affect the implementation of a
new standard? (10) What quantitative data are there on safety performance of
drivers with ITDM? Do these studies link efficacy of medication and
therapy with risk and incidence of crashes in commercial and non-
commercial motor vehicles? If so, how? (11) How many individuals with ITDM are likely to enter the motor
carrier occupation if the current medical standards are changed to
allow them to drive in interstate commerce? (12) The TEA-21 Report to Congress discusses occupational and
health risks and challenges for individuals with ITDM who operate CMVs.
Are there additional occupational and health risks and challenges the
TEA-21 Report to Congress did not discuss? Are there additional
attributes of this occupation, which may make it particularly difficult
for such drivers to manage their condition? Are these attributes
characteristic of certain segments of the industry? Should individuals
with ITDM be restricted to operating in only certain segments of the
industry (e.g., driving locally or short-haul, but not long-haul)? (13) What are the potential operational stressors and physical
impacts associated with CMV driving that may adversely impact a CMV
operator with ITDM? Please provide references or available peer-
reviewed research data. Rulemaking Analyses and Notices Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures FMCSA has determined this ANPRM is a significant regulatory action
within the meaning of Executive Order 12866 and the Department of
Transportation regulatory policies and procedures (44 FR 11034,
February 26, 1979). The Office of Management and Budget has reviewed
this ANPRM as required by Executive Order 12866. The Agency is not yet in a position to analyze fully any potential
actions it may initiate in response to this ANPRM. FMCSA seeks comments
on the following issues to guide our analysis for a potential notice of
proposed rulemaking: (1) The costs and benefits of potentially effective and reasonably
feasible alternatives to the current regulations, including improving
the current regulation and reasonably viable non-regulatory actions;
and (2) Any preliminary impact assessments of these regulatory and non-
regulatory alternatives on the health of CMV drivers with ITDM. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by
the Small Business Regulatory Enforcement and Fairness Act (Pub. L.
104-121), (RFA) requires Federal agencies to analyze the impact of
regulatory alternatives on small entities, unless FMCSA certifies that
a regulatory alternative will not have a significant economic impact on
a substantial number of small entities, and to consider non-regulatory
alternatives that could achieve our goal while minimizing the burden on
small entities. The Agency is not yet in a position to analyze fully any potential
actions it may initiate in response to this ANPRM. FMCSA requests comments and data from the public on how potential
alternatives may impact small motor carriers, including owner-
operators, who may employ or use a driver with ITDM. This information
would represent a major input to estimating the costs of any potential
alternatives on small entities. The agency also specifically requests
comments on the benefits of potential alternatives. In addition, FMCSA
asks entities and associations of small entities to identify their
gross revenues. Executive Order 13132 (Federalism) Although the agency believes there are no Federalism issues, the
agency is not yet in a position to analyze fully any potential actions
in accordance with the principles and criteria contained in Executive
Order 13132, (64 FR 43255, August 10, 1999). As stated earlier in this
ANPRM, FMCSA and its predecessors have regulated the physical condition
of drivers with ITDM since 1971. The agency believes regulating drivers
with ITDM in interstate commerce is an issue that is national in scope.
The agency specifically requests comment from State and local officials
on any Federalism issues. Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C.
1532) requires each agency to assess the effects of its regulatory
actions on State, local, and tribal governments and the private sector.
Any agency promulgating a final rule likely to result in a Federal
mandate requiring expenditures by a [[Page 13805]] State, local, or tribal government, or by the private sector of $120.7
million or more in 2003 dollars in any one year, must prepare a written
statement incorporating various assessments, estimates, and
descriptions that are delineated in the Act. Although FMCSA believes
there would be no unfunded mandates arising from any change in the
current standard, the Agency is not yet in a position to analyze fully
any potential actions it may initiate and that may meet the
requirements of the Unfunded Mandates Reform Act. FMCSA seeks specific
comments whether such impacts are likely for any regulatory or non-
regulatory alternative for agency consideration. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), a
Federal agency must obtain approval from OMB for each collection of
information it conducts, sponsors, or requires through regulations. Current exemption program applicants provide personal, employee
health and driving information during the application process. There
may be additional health information required as a result of this
rulemaking action. The agency is not yet in a position to analyze fully
any potential action the agency may initiate that may fall within the
scope of the Paperwork Reduction Act. If FMCSA initiates a potential
regulatory alternative in the future, incorporating these or other
relevant provisions, the Agency would seek approval of any collection
of information requirements to generate, maintain, retain, disclose,
and provide information to, or for, the agency under 49 CFR part 391. National Environmental Policy Act It is not expected that this rulemaking will have environmental
impacts, although the agency is not yet in a position to analyze fully
any potential actions under the requirements of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f) and our
environmental procedures Order 5610.1 (issued on March 1, 2004, 69 FR
9680). The agency believes potential actions the agency may initiate in
response to this ANPRM may be categorically excluded (CE) from further
environmental documentation under Appendix 2.6.d. and 2.6.z. of Order
5610.1, which contain categorical exclusions for regulations concerning
the training, qualifying, licensing, certifying, and managing of
personnel and regulations establishing minimum qualifications for
persons who drive CMVs as, for, or on behalf of motor carriers. In
addition, FMCSA believes potential actions the agency may initiate
would not involve extraordinary circumstances that would affect the
quality of the environment. FMCSA is not yet in a position to analyze fully any potential
actions under the requirements of the Clean Air Act, as amended (CAA)
section 176(c), (42 U.S.C. 7401-7671) and implementing regulations
promulgated by the Environmental Protection Agency. FMCSA believes
potential actions the agency may initiate would be exempt from the
CAA's General conformity requirement since they would involve policy
development and civil enforcement activities, such as investigations,
inspections, examinations, and the training of law enforcement
personnel. See 40 CFR 93.153(c)(2). The agency anticipates potential
actions the agency may initiate in response to this ANPRM would not
result in any emissions increase or result in emissions that are above
the general conformity rule's de minimis emission threshold levels
because potential actions would merely establish standards for drivers
to control their diabetes mellitus. The agency seeks comment on the effect on the environment of any
potential action alternatives. Executive Order 12630 (Taking of Private Property) The Agency is not yet in a position to analyze fully any potential
actions that may constitute a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights. FMCSA seeks comment on whether potential actions it may
initiate in response to this ANPRM would constitute a taking of private
property or otherwise have implications under Executive Order 12630. Executive Order 12372 (Intergovernmental Review) The agency is not yet in a position to analyze fully any potential
actions that may require intergovernmental consultation on Federal
programs and activities under Executive Order 12372, as amended. FMCSA
seeks comment on whether potential actions the agency may initiate in
response to this ANPRM would require any intergovernmental consultation
on Federal programs and activities under Executive Order 12372, as
amended. Executive Order 13211 (Energy Supply, Distribution, or Use) FMCSA is not yet in a position to analyze fully any potential
actions that may affect energy supply, distribution, or use under
Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use. The agency
seeks comment on whether potential actions the agency may initiate in
response to this ANPRM would affect any regulatory or non-regulatory
alternatives that may significantly affect energy supply, distribution,
or use. Executive Order 12988 (Civil Justice Reform) The agency is not yet in a position to analyze fully any potential
actions that may meet applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden. The agency seeks comment on
whether potential actions FMCSA may initiate in response to this ANPRM
would meet the standards in Executive Order 12988. List of Subjects in 49 CFR Part 391 Alcohol abuse, Diabetes, Drug abuse, Drug testing, Highway safety,
Medical, Motor carriers, Physical qualifications, Reporting and
recordkeeping requirements, Safety, Transportation. Issued on: March 6, 2006.
Annette M. Sandberg,
Administrator.
[FR Doc. 06-2417 Filed 3-16-06; 8:45 am] BILLING CODE 4910-EX-P
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