Commercial Driver Physical Qualifications As Part of the Commercial Driver's License Process

FEDERAL COMMUNICATIONS COMMISSION

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 383 and 391

[FHWA Docket No. MC-93-23]

RIN 2125-AD20

Commercial Driver Physical Qualifications As Part of the

Commercial Driver's License Process

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of intent to form a Negotiated Rulemaking Committee on

Commercial Driver's License (CDL) and Physical Qualifications

Requirements.

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SUMMARY: The FHWA proposes to establish a negotiated rulemaking

advisory committee (the Committee) under the Federal Advisory Committee

Act and the Negotiated Rulemaking Act to consider the relevant issues

and attempt to reach a consensus in developing regulations governing

the proposed merger of the State-administered commercial driver's

license procedures and the driver

[[Page 18714]]

physical qualifications requirements of 49 CFR Part 391. The Committee

would be composed of people who represent the interests that would be

substantially affected by the rule.

The FHWA invites interested parties to comment on the proposal to

establish the Committee and on the proposed membership of the

Committee, and to submit applications or nominations for membership on

the Committee.

DATES: Interested parties may file comments and nominations for

committee membership on or before May 29, 1996.

ADDRESSES: Comments and/or nominations should be sent to FHWA Docket

No. MC-93-23, Room 4232, HCC-10, Office of Chief Counsel, Federal

Highway Administration, 400 Seventh Street, SW., Washington, D.C.

20590. All comments received will be available for examination at the

above address from 8:30 a.m. to 3:30 p.m. e.t., Monday through Friday,

except Federal holidays. Those desiring notification of receipt of

comments must include a self-addressed, stamped postcard/envelope.

FOR FURTHER INFORMATION CONTACT: Ms. Teresa Doggett, Office of Motor

Carrier Research and Standards, (202) 366-4001, or Ms. Grace Reidy,

Office of Chief Counsel, (202) 366-0834, Federal Highway

Administration, 400 Seventh Street, SW., Washington, D.C. 20590. Office

hours are from 7:45 a.m. to 4:15 p.m. e.t., Monday through Friday,

except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

The Secretary of Transportation has authority to establish

standards for physical qualifications that must be met by drivers in

interstate commerce. 49 U.S.C. 31502 and 49 U.S.C. 31136. This

authority is delegated to the Federal Highway Administrator. 49 CFR

1.48. The Federal Motor Carrier Safety Regulations (FMCSRs) set forth

the qualifications of drivers who operate commercial motor vehicles

(CMV) in interstate commerce. 49 CFR 391.11. The Commercial Motor

Vehicle Safety Act of 1986 (CMVSA) provides, in section 12005(a)(8) (49

U.S.C. 31305(a)(8)), that Federal standards may be promulgated to

require issuance of a certification of fitness to operate a CMV to each

person who passes a CDL test and may require such person to have a copy

of such certification in his or her possession whenever operating a

CMV.

In September 1990, the FHWA explored options for giving

responsibility for medical qualification determinations to the State

licensing agencies as part of the CDL process. Six States--Alabama,

Utah, Arizona, North Carolina, Indiana and Missouri--began pilot

programs seeking efficient ways to assure that commercial motor vehicle

drivers meet the Federal physical qualifications requirements before

they are issued a license. The pilots were developed by the FHWA and

its contractors, the Association for the Advancement of Automotive

Medicine and the American Association of Motor Vehicle Administrators,

in conjunction with a committee of State government licensing

officials.

The pilot projects were completed on January 31, 1995, and a final

report was submitted to the agency. The report revealed that the State

driver licensing agencies demonstrated the potential to assume

responsibility for commercial motor vehicle driver medical

qualification determinations as part of the CDL process. However, some

States indicated they would require enabling legislation and additional

funding to administer the process.

Currently, the FMCSRs require that CMV drivers be medically

examined and certified as physically qualified once every two years in

order to operate in interstate commerce. If the driver meets the

Federal physical qualifications requirements, a medical examiner then

issues a medical certificate which indicates that the driver is

qualified to drive. Drivers must carry this certificate while driving

and employers must maintain a copy in the drivers' qualification files.

49 CFR 391.41(a), 391.43, 391.45 and 391.51(b)(1). Enforcement of these

requirements is performed primarily through roadside inspections of

vehicles and drivers or through Federal or State safety compliance

reviews of motor carriers.

In addition, 49 CFR 383.71(a) requires that during the CDL

application process a person who operates or expects to operate in

interstate or foreign commerce, or is otherwise subject to 49 CFR Part

391, shall certify that he or she meets the qualification requirements

contained in 49 CFR Part 391. In practice, some States rely solely on

the drivers' certifications while other States also require drivers who

certify that they meet the qualification requirements of Part 391 to

produce the required medical certificate in order to be issued a CDL.

Before issuing the CDL, a few States also review the medical ``long

form'' that the medical examiner completes to assure that the

regulatory requirements are met.

The FHWA issued an advance notice of proposed rulemaking

(ANPRM)(copy enclosed in Docket File) on July 15, 1994, requesting

comments on merging the CDL and physical qualifications programs. 59 FR

36338. The FHWA stated in the ANPRM that merging the systems would

allow the States to make the physical qualification determinations

prior to issuing a CDL. Under such an approach, the CDL would then be

the sole document a commercial driver would have to carry and would be

evidence that a driver is medically qualified to operate the CMV.

The proposal to merge the medical fitness determination into the

CDL process has several very strong potential benefits. Drivers would

be relieved of the responsibility to carry a medical fitness card, thus

eliminating the potential for such cards to be inadvertently lost,

damaged or destroyed. Enforcement personnel would also have immediate

notice of the medical fitness status of a driver, without the time-

consuming need to refer to and authenticate a separate document.

Carriers would no longer need to maintain driver medical qualification

certificates, as the license document itself would confirm the fitness

of the driver.

In addition, States would be better able to identify unqualified

drivers that currently operate without medical cards or with forged

medical cards. Where questions exist regarding a license applicant, the

driver licensing agency could refer the applicant and the medical

fitness form to the State medical advisory board for further review.

Medical advisory boards are currently in place in many States and are

used to review medical qualifications of passenger car drivers and for

intrastate CMV operators. The agency understands that forty-seven

States currently have either a medical advisory board or some kind of

medical review process for the above-described driver licensing

determinations. In this rulemaking, the FHWA proposes to include

medical determinations involving interstate CMV drivers in existing

State medical review infrastructure programs by taking advantage of

established working practices that are prevalent within State licensing

agencies.

The results of the six-State pilot program provide support for the

benefits of this proposal. The final report found that drivers who did

not meet current medical standards could be readily detected and could

be restricted from driving CMVs entirely or within parameters set by

the driver licensing agency and its medical advisory board. Medical

examiners would be able to contact the driver licensing agency medical

unit or medical advisory board if questions arose during a physical.

The

[[Page 18715]]

review of the fitness qualifications as part of the licensing process

streamlines the procedure and creates a single record for each driver.

The pilot found that fraudulent or expired medical certifications and

the lack of required medical certifications of drivers did not exist in

the six participating States.

In the ANPRM, the FHWA asked interested parties to comment on

specific issues including the feasibility of the ``merger'' concept;

how best to achieve such a system; how to reconcile the differences

between the States' four-year CDL renewal cycle with the FHWA's two-

year medical certificate cycle; whether medical examiners should be

certified to perform examinations; the degree of flexibility States

should have in determining how to implement any new, merged standard;

and the types of resources required by States to implement a new,

merged standard. Seventy-six parties responded to the notice, including

State agencies, for-hire motor carriers, private carriers, safety

advocates, and medical groups.

The responses received from commenters to the ANPRM generally

involved one of five general issues. Because the parties likely to be

interested in this proposed regulation (i.e., State licensing agencies,

carriers, drivers, medical professionals) are fairly well defined, and

the issues identified through the ANPRM are also well defined, the

agency believed that this proposed rulemaking would be a good candidate

for negotiated rulemaking. The range of interested parties and issues

to be addressed are not the only reasons for the decision to initiate a

negotiated rulemaking. The agency is enthusiastic about the opportunity

to work cooperatively with partners in the motor carrier community at

large to discuss this issue and approaches to resolving it in an open

exchange of ideas. The opportunity to engage in face-to-face discussion

of concerns and benefits will hopefully allow for a creative,

cooperative approach to addressing the merger of medical fitness and

licensing decisions.

As referenced earlier, the five general issues identified by the

respondents to the ANPRM were: (1) whether States would have statutory

authority to verify the physical qualifications of a driver; (2)

whether there will be adequate staff available to verify drivers'

compliance with physical qualifications requirements at the time a

license is issued; (3) the feasibility of merging the two-year medical

certificate with the States' four-year licensing cycle; (4) the motor

carrier's role in assuring physical qualifications of the driver; and

(5) the cost of training licensing examiners and/or staffing medical

review boards on the administration of the process.

Comments on the ANPRM included questions on the potential costs to

States of assuming responsibility for verifying medical fitness as part

of CDL issuance or renewal. Some carriers expressed concern that

licensing agencies would be unable to adequately confirm information on

the medical form and suggested that the current carrier responsibility

for driver fitness be maintained. The agency believes that the results

of the six-State pilot program indicate a strong likelihood that States

can assume responsibility for the medical fitness determination

process. This rulemaking will form the basis for addressing the

questions raised by respondents to the ANPRM, as well as other issues

that may be identified as this process continues.

Pursuant to the Negotiated Rulemaking Act, 5 U.S.C. 561-570, the

agency has decided to form a negotiated rulemaking committee. As

discussed earlier, the agency believes that this approach is most

likely to lead to an efficient and successful transfer of

responsibility for medical fitness determinations to State licensing

agencies. Unlike traditional, informal notice and comment rulemaking,

this process will allow for the open exchange of ideas and information

among and between parties with an interest in the outcome of this

issue. The agency believes that in adopting this approach, the process

will lead to creative, innovative approaches to resolving issues that

might not emerge through the individual efforts of commenters to a

docket. The process will still result in the promulgation of a notice

of proposed rulemaking. This will provide an opportunity for comment by

other interested parties and the general public, but the initial

proposal that will be published for comment will reflect the exchange

of ideas and differing proposals that occur in negotiations. One result

of the negotiations will be a better informed commercial motor vehicle

safety community with a fuller understanding of the benefits and

potential problem areas associated with State verification of medical

fitness determinations. This knowledge should help all parties,

including the agency, to develop a more practical, effective means of

dealing with these medical fitness determinations.

Negotiated Rulemaking Process

Conveners

As provided for in 5 U.S.C. 563(b), a convener assists the agency

in identifying the persons or interests that would be significantly

affected by the proposed rule. The convener conducts discussions with

representatives of such interests to identify the issues of concern to

them and to ascertain the feasibility of establishing a negotiated

rulemaking committee.

The FHWA retained the services of a contractor to act as a convener

and provide advice on the feasibility of using a negotiated rulemaking

process for this rule. The convening team met with FHWA officials to

review background information on the issues, including the responses to

the ANPRM, potential interested parties, and objectives of the agency.

Prior to conducting interviews with prospective participants, the

convening team analyzed the views of the various respondents to the

ANPRM and the level of controversy generated by the issues as outlined

in the ANPRM.

The conveners attempted to develop the range of interests that

would be affected by the rule and identify individuals who would be

able to represent or articulate those interests. The conveners then

sought to interview those individuals to determine their views on the

issues involved and whether they would be interested in participating

in the negotiated rulemaking. The convening team sought to determine

whether the negotiated rulemaking process would be effective in

developing the rule. Each party was also asked if there were other

individuals or groups which should be contacted and these additional

parties were also interviewed. Based upon these interviews, the

conveners submitted a convening report (copy enclosed in Docket File)

in December 1995 to the FHWA, recommending that the agency proceed with

the negotiated rulemaking process.

Determination of Need for Negotiated Rulemaking Committee

The purpose of a negotiated rulemaking committee is to develop

consensus on a proposed rule. ``Consensus'' means the unanimous

concurrence among the interests represented on the negotiated

rulemaking committee unless the committee explicitly adopts some other

definition. This requirement also means that the agency itself

participates in the negotiations in a manner similar to that of any

other party.

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Before establishing such a negotiated rulemaking committee, the

Negotiated Rulemaking Act (5 U.S.C. 563(a)) directs the head of an

agency to consider whether:

1. There is a need for the rule;

2. There are a limited number of identifiable interests that will

be significantly affected by the rule;

3. There is a reasonable likelihood that a committee can be

convened with a balanced representation of persons who can adequately

represent those interests and are willing to negotiate in good faith to

reach a consensus on a proposed rule;

4. There is a reasonable likelihood that a committee will reach

consensus on the proposed rule within a fixed period of time;

5. The negotiated rulemaking will not unreasonably delay the

issuance of the notice of proposed rulemaking and the final rule;

6. The agency has adequate resources and is willing to commit such

resources, including technical assistance, to the committee; and

7. The agency, to the maximum extent possible, consistent with its

statutory authority and legal obligations, will use the consensus of

the committee as the basis for the rule proposed by the agency for

notice and comment.

The FHWA believes that all of the requisite negotiated rulemaking

factors are satisfied with regard to the proposal to merge the medical

qualification determination and the CDL processes and that the

negotiating process could provide significant advantages over

conventional informal rulemaking. This determination is based on the

review of the comments to the ANPRM and the convener's report submitted

by the contractor. There is broad consensus among the parties contacted

by the conveners that there are weaknesses in the current medical

qualifications system that can be improved. The potentially affected

interests are limited in number; there are clearly fewer than 25

distinct interests that would be affected by the rule. A balanced

committee representing the various interests at stake in this matter

can be empaneled. The parties contacted by the conveners have expressed

their interests in discussing the issues and believe that there is a

strong likelihood of reaching consensus on the issues within a

reasonable period of time. The FHWA believes that these negotiations

will not delay, but will expedite the rulemaking process since the

negotiations will enable the agency to benefit from the committee

members' practical first-hand insights and knowledge into the operation

of the physical qualifications determinations and the benefits and

costs of integrating those determinations into the licensing process.

Gaining those insights and resolving the controversies surrounding the

identified issues would otherwise take the agency considerably longer

to resolve by using traditional rulemaking. The agency is committed to

facilitating the negotiated rulemaking process and will devote the

necessary resources, including technical assistance, to the Committee.

The member or members of the Committee representing the agency shall

participate in the deliberations and activities of the Committee with

the same rights and responsibilities as other members of the Committee,

and shall be authorized to fully represent the agency in discussions

and negotiations of the Committee. The agency, to the maximum extent

possible, consistent with its statutory authority and legal

obligations, will use the consensus of the Committee as the basis for

the rule proposed by the agency for notice and comment.

Therefore, based on this analysis of the seven factors mentioned

above, the agency has concluded that the use of the negotiated

rulemaking procedure in this case is in the public interest.

Potential Topics for the Negotiated Rulemaking Process

Based on the interviews conducted with potential committee members

and the report provided by the convener, the FHWA proposes that the

following issues would be considered in the negotiated rulemaking

process.

1. Whether the physical qualifications guidelines currently used by

the agency should be modified to more effectively implement the current

medical standards.

2. The scope of any medical qualifications tracking system which

might be used by law enforcement officials, as well as by carriers

interested in medical information that is not currently available.

3. What is the status of the various federally-funded State

Prototype Medical Review pilot programs which explored the merger of

the medical qualifications and licensing processes, and what useful

information can be utilized from these efforts in drafting a rule on

merging CDL and physical qualifications requirements?

4. How much control should various parties have over the medical

review process and should the current commonly-used procedure, in which

a company directs its drivers to physicians it selects, be replaced

entirely or could it simply be modified? For example, should the agency

require drivers to submit a medical long form to employers and the

appropriate State licensing agency instead of replacing the current

system?

5. How can the current physical examination requirements used by

medical providers be clarified? How can these requirements and

guidelines be more effectively communicated to the medical provider

community?

6. Is there a way to allow merger of the separate requirements

without burdening the small operator who moves to another State? In

this case, although the driver's medical certification would still be

valid, he or she might still be required to be recertified in the new

State, thus potentially requiring a new certificate and a corresponding

fee (e.g. medical reciprocity of old certificate to new States).

Once the negotiated rulemaking process begins, Committee members

may raise other issues necessary for successful completion of the

rulemaking.

Potential Participants Who Were Interviewed By Conveners

The following entities were identified as interested parties that

should be included in the negotiated rulemaking process either directly

as members of the Committee or as a part of a broader caucus of similar

or related interests:

Enforcement Groups

Commercial Vehicle Safety Alliance

International Association of Chiefs of Police

State Licensing Agencies

American Association of Motor Vehicle Administrators

Carriers

American Trucking Associations

National Private Truck Council

National School Transportation Association

United Bus Motor Coach Association

American Bus Association

Terra International (Agricultural)

Farmland Industries (Agricultural)

Drivers

Owner-Operators Independent Drivers Association

Independent Truckers and Driver Association

Independent Truck Owner Operator Association

International Brotherhood of Teamsters

Public Interest

Advocates for Highway and Auto Safety

American Automobile Association

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Medical

American College of Occupational and Environmental Medicine

Association for the Advancement of Automotive Medicine

American Association of Occupational Health Nurses

Insurance

Lancer Insurance (Busing Interests)

AI Transportation--AIG (Busing and Trucking)

Insurance Institute for Highway Safety

Proposed Agenda and Schedule

The FHWA anticipates that the negotiated rulemaking committee will

hold six two-day meetings, approximately once a month. The first

committee meeting will focus on such matters as: determining if there

are additional interests that should be represented on the Committee;

identifying issues to be considered; and setting ground rules, a

schedule, and an agenda for future Committee meetings.

Administrative Support

The FHWA's Office of Motor Carrier Research and Standards will

supply logistical, technical, and administrative support to the

Committee. The meetings will be held at the FHWA headquarters in

Washington, D.C. Washington, D.C. is where a majority of the

prospective Committee members are located. In general, Committee

members will be responsible for their own expenses, but the FHWA will

consider requests for compensation in accordance with 5 U.S.C. 568(c).

Applications for Membership on Committee

The FHWA is soliciting comments on this proposal to establish a

negotiated rulemaking advisory committee and on the proposed membership

of the Committee. Persons may apply or nominate another person for

membership on the Committee in accordance with the following

procedures:

Persons who will be significantly affected by the proposed rule and

who believe that their interests will not be adequately represented by

any person on the previously discussed list of potential participants

may apply for, or nominate another person for, membership on the

negotiated rulemaking committee. Each application or nomination shall

include:

1. the name of the applicant or nominee and a description of the

interests such person shall represent;

2. evidence that the applicant or nominee is authorized to

represent parties related to the interests the person proposes to

represent;

3. a written commitment that the applicant or nominee shall

actively participate in good faith in the development of the rule under

consideration; and

4. the reasons that the persons specified in this notice do not

adequately represent the interests of the person submitting the

application or nomination.

Announcement of FHWA Public Meeting

In order to identify and select organizations or interests to be

represented on the Committee, the FHWA will hold a public meeting on

May 14, 1996. The meeting will be held at the Nassif Building, 400 7th

Street, SW, Room 9230, Washington, D.C., at 8:30 a.m. e.t. All parties

interested in this rulemaking, including the potential participants

listed above and parties submitting applications or nominations for

membership, are encouraged to attend this meeting. The convener/

facilitator will also attend this organizational meeting.

As a general rule, the Federal Advisory Committee Act provides that

no advisory committee may meet or take any action until an approved

charter has been filed with the appropriate House and Senate committees

with jurisdiction over the agency using the committee. Only upon the

Secretary of Transportation's approval of the charter and the list of

organizations or interests to be represented on the Committee and the

filing of the charter will the FHWA form the Committee and begin

negotiations.

After review of the comments received in response to this notice

and any additional comments received at the organizational meeting, the

FHWA will issue a final notice announcing the Committee members and the

date of the first Committee meeting.

Authority: [5 U.S.C. 561-570].

Issued on: April 23, 1996.

Rodney E. Slater,

Federal Highway Administrator.

[FR Doc. 96-10548 Filed 4-26-96; 8:45 am]

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