[Federal Register: April 5, 2006 (Volume 71, Number 65)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[FMCSA Docket No. FMCSA-2005-22177]
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 two 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 5, 2006. The exemptions
expire on April 7, 2008.
FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Chief, Physical
Qualifications Division, (202) 366-4001, firstname.lastname@example.org,
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
(Public Law 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 that 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 (Public Law 109-59, 119 Stat., August
10, 2005) required FMCSA to revise its diabetes exemption program
established on September 3, 2003 (68 FR 52441). 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 [[Page 17158]]
by the September 3, 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) 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). Therefore, 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 October 19, 2005, FMCSA published a Notice of receipt of
diabetes exemption applications from three individuals, and requested
comments from the public (70 FR 60875). The three individuals are:
Doyle F. Heiner, James R. Moretz, and Uve J. Witsch. The public comment
period closed on November 18, 2005. Three comments were received
through the DMS and one comment was received by telephone in regard to
Uve. J. Witsch. All comments have been fully considered by FMCSA in
reaching the final decision whether to grant the exemptions.
FMCSA has evaluated the eligibility of the three applicants and
made a determination that granting the exemptions to two of these
individuals would achieve a level of safety equivalent to, or greater
than, the level that would be achieved by complying with the current
regulation 49 CFR 391.41(b)(3). FMCSA is at this time unable to
determine if granting the third exemption would achieve the same level
of safety. A request for additional information has been sent to Mr.
Witsch to assist the Agency in making this determination.
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 three applicants have had ITDM over a range of 5 to 9 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 October 19, 2005, Notice (70 FR
23904). Because there were no docket comments on the specific merits or
qualifications of any applicant, we have not repeated the individual
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 two of 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 Doyle F. Heiner and James R. Moretz. Once
the Agency has received the requested information from Mr. Witsch, it
will be reviewed, and a final determination will be published in a
separate Federal Register Notice.
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 three comments in this proceeding through the DMS.
The comments were considered and are discussed below.
Heather M. Murphy commented that she does not believe that it is
fair that an insulin dependent person is now able to receive an
exemption to drive in interstate commerce without three years of
driving experience while taking insulin, and individuals applying for a
Federal vision exemption must still meet this three years of experience
requirement. She believes that all exemptions should go by the same
standards and she requests that FMCSA reconsider the Federal vision
FMCSA recognizes the current differences between the Federal
Diabetes Exemption Program and the Federal Vision Exemption Program
related to driving experience criteria. FMCSA has used recent driving
experience in evaluating future safety, based on several research
studies designed to correlate past and future driving performance.
Results of these studies support the principle that the best predictor
of future performance by a driver is his/her past record of crashes and
traffic violations. Copies of these studies may be found at docket
number FMCSA-98-3637. The implementation of SAFETEA-LU mandated the
removal of the three year driving requirement from the Federal diabetes
exemption eligibility criteria.
The Agency has begun initiatives to evaluate if the driving
experience criteria should remain part of the Federal Vision Exemption
Program. FMCSA has begun a Federal Vision Exemption Program evaluation.
One portion of this evaluation will focus on determining if drivers
with certain [[Page 17159]] visual deficiencies are as safe or safer than drivers in the general
population. FMCSA also published a Federal Register Notice announcing
the establishment of a Medical Review Board (MRB) on October 3, 2005
(70 FR 57642). The MRB is scheduled to review the vision standard
during the third quarter of 2006. The driving experience criteria will
remain in effect for the Federal Vision Exemption Program until the
conclusion of these initiatives.
Two additional comments received were in favor of granting the
exemptions and supported the approach FMCSA takes in evaluating the
After considering the comments to the docket and based upon its
evaluation of the 3 exemption applications, FMCSA exempts Doyle F.
Heiner and James R. Moretz from the diabetes requirement 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 the 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. E6-4898 Filed 4-4-06; 8:45 am]
BILLING CODE 4910-EX-P