Qualification of Drivers; Vision and Diabetes; Limited Exemptions

SUMMARY: The FHWA announces a proposal to allow those drivers currently

holding valid waivers from both the vision and diabetes standards

contained in the Federal Motor Carrier Safety Regulations (FMCSRs) to

continue to operate in interstate commerce after March 31, 1996. This

action is directed solely at those drivers who have been granted

temporary waivers to participate in either the Federal vision waiver

study, who numbered 2240, or in the Federal diabetes waiver study, who

number 119 as of November 1, 1995. The FHWA believes that allowing this

special group of drivers to continue to drive after March 31, 1996, is

consistent with the public interest and safe operation of commercial

motor vehicles (CMV). This action is necessary because the waiver

program termination date of March 31, 1996, has been established, and

without this action, the drivers will no longer be qualified to operate

in interstate commerce after that date. The FHWA proposes to allow

these drivers to continue operations, subject to certain operating

conditions. The proposal also includes a technical amendment to

relocate an existing provision so that all limited exemptions from

driver qualification standards can be found in the same subpart.

DATES: Comments must be received on or before February 7, 1996.

ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-96-2,

Room 4232, HCC-10, Office of the Chief Counsel, Federal Highway

Administration, 400 Seventh Street, SW., Washington, DC 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 envelope. Comments received

after the comment closing date will be filed in the docket and will be

considered to the extent practicable. The FHWA may issue a final

determination and rule on this matter at any time after the close of

the comment period.

FOR FURTHER INFORMATION CONTACT: The FHWA has established a special

telephone number to receive inquiries regarding this action. The number

is 1-800-832-5660. Office hours are from 7:45 a.m. to 4:15 p.m., e.t.,

Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: Section 206(f) of the Motor Carrier Safety

Act of 1984 (MCSA), Pub. L. No. 98-554, 98 Stat. 2835 (codified at 49

U.S.C. 31136(e), formerly 49 U.S.C. App. 2505(f)) allows the Secretary

of Transportation to issue waivers from the Federal Motor Carrier

Safety Regulations only after a determination that such waivers are not

contrary to the public interest and are consistent with the safe

operation of CMVs. Historically, the FHWA has issued limited waivers

and does not intend to enter into any large scale program of

exemptions. The safety performance data collected under the vision and

diabetes waiver programs would be used as the basis for this

determination; however, separate research proceedings would form the

basis for any future adjustments, if warranted, to the current vision

and diabetes standards. The FHWA has decided on a 30 day comment period

in order to give adequate notice to waived drivers of their status at

the conclusion of the waiver program on March 31, 1996. Prior notices

on the waiver program have established the issues facing the FHWA in

deciding the disposition of these drivers; therefore, these issues are

well known to potential commenters on this notice. See 59 FR 50887

(October 6, 1994) and 59 FR 59386 (November 17, 1994).

Vision Waiver Program Background

On February 28, 1992, the FHWA published a notice of proposed

rulemaking (NPRM), 57 FR 6793, requesting comments on the need, if any,

to amend its driver physical qualification requirements relating to

vision. On March 25, 1992, the FHWA published a notice of intent to

issue waivers from the vision requirement, 57 FR 10295. The notice

indicated that applications would be processed as quickly as possible

and waivers would be issued for a period of three years or until the

current rulemaking addressing the Federal vision requirement is

completed, whichever occurred first. The notice imposed certain

conditions and reporting requirements on applicants, among them that

applicants for a waiver submit medical certification that the vision in

their better eye is at least 20/40 acuity, corrected or uncorrected.\1\

\1\ The current Federal vision standard for CMV drivers

requires: distant visual acuity of at least 20/40 (Snellen) in each

eye without corrective lenses or visual acuity separately corrected

to 20/40 (Snellen) or better with corrective lenses, distant

binocular acuity of at least 20/40 (Snellen) in both eyes with or

without corrective lenses, field of vision of at least 70 degrees in

the horizontal meridian in each eye, and the ability to recognize

the colors of traffic signals and devices showing standard red,

green, and amber. 49 CFR 391.41(b)(10).

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The FHWA published a subsequent notice, 57 FR 23370, on June 3,

1992, announcing the receipt of applications by drivers for waiver of

the FHWA's vision requirements and seeking comments on its intent to

waive its vision requirements for drivers who met certain conditions.

The notice explained that the proposed waiver program would enable the

FHWA to conduct a study comparing a group of experienced drivers with a

visual deficit in one eye with a control group of experienced drivers

who meet the Federal vision requirements. The FHWA believed that the

study would provide the empirical data that a previous study did not.

In its Notice of Final Disposition, 57 FR 31458, published on July

16, 1992, the FHWA instituted the waiver program, making temporary

waivers available to drivers who met the announced conditions. The FHWA

determined that the waiver is not contrary to the public interest. The

program is consistent with the national policy, as expressed in the

Rehabilitation Act of 1973 and the Americans with Disabilities Act, to

facilitate the employment of qualified individuals with disabilities.

Moreover, the FHWA found that the waiver program was consistent with

the safe operation of CMVs because the program's requirements would

effectively screen out unsafe drivers.

These safeguards required waiver applicants to be otherwise

qualified under 49 CFR Part 391, and hold a valid commercial driver's

license to operate a CMV issued after April 1, 1990. The applicant must

also have had three years' recent experience driving a CMV without (1)

license suspension or revocation; (2) involvement in a reportable

accident in which the applicant received a citation for a moving

violation; (3) conviction for driving a CMV while intoxicated, leaving

the scene of an accident involving a CMV, commission of a felony or

more than one serious traffic violation involving a CMV; or (4) more

than two convictions for any other moving violation in a CMV. Finally,

the applicant had to present proof from an

[[Page 607]]

optometrist or ophthalmologist certifying that the applicant's visual

deficiency has not worsened since his or her last examination, that

vision in one eye is at least 20/40 acuity, corrected or uncorrected,

and that the applicant is able to perform the driving tasks required to

operate a CMV.

In addition, the applicant had to comply with the following

requirements: (1) report all citations for moving violations involving

a CMV; (2) report the disposition of the charge; (3) report any

accident involvement whatsoever while operating a CMV; (4) submit

documentation of an annual examination by an ophthalmologist or

optometrist; and (5) submit reports of vehicle miles traveled monthly

in a CMV.

Court Decision

On August 2, 1994, the U.S. Court of Appeals for the D.C. Circuit

found that the agency's ``determination that the waiver program will

not adversely affect the safe operation of CMVs is devoid of empirical

support in the record'' and that ``the FHWA has failed to meet the

exacting requirements of section 2505(f) (now 49 U.S.C. 31136(e)).''

Advocates for Highway and Auto Safety v. FHWA, 28 F.3d 1288, 1294.

Consequently, the Court concluded that the FHWA's adoption of the

waiver program was contrary to law, and vacated and remanded the rule

to the agency.

On October 6, 1994, the FHWA published a Notice of Determination,

Request for comments, 59 FR 50887, extending the validity of the vision

waivers for a thirty-day period. The notice also proposed to allow the

waiver program to continue until its original March 31, 1996,

termination date based on the additional empirical evidence presented

in the notice. On the same day, an emergency motion was filed in the

D.C. Circuit requesting that the court issue and enforce the mandate in

Advocates, thereby halting the waiver program. The court issued its

mandate on October 21, 1994, and on October 24, 1994, the court denied

the Advocates' emergency motion.

On November 17, 1994, the FHWA published a Notice of Final

Determination (59 FR 59386) that continued the vision waiver program

through March 31, 1996. The FHWA's decision was based, in part, on data

collected on the group of waived drivers indicating that they had

performed and continued to perform more safely than drivers in the

general population of commercial drivers. The notice announced that the

FHWA would develop and impose more stringent performance conditions to

further reduce the safety risks to the waived drivers and highway

users. This task was accomplished by separate mailings to vision waiver

drivers on February 8, 1995. The notice also announced that the FHWA

would convene a public meeting regarding its research plans with

respect to defining the appropriate vision standard.

Diabetes Waiver Program Background

The FHWA has considered various amendments to its diabetes

requirement since 1977. See 55 FR 41028 (October 5, 1990) (notice of

proposed rulemaking) and 52 FR 45204 (November 25, 1987) (advance

notice of proposed rulemaking) with FHWA docket number MC-87-17. Please

refer to these notices for a complete background discussion of the

FHWA's efforts in this area. Copies can be found in the docket.

The FHWA published in the Federal Register a Notice of Intent to

Initiate a Waiver Program for certain insulin-using diabetic drivers of

CMVs from the absolute prohibition contained in the FMCSRs. See 57 FR

48011 (October 21, 1992). The intent of the proposed waiver program was

to collect data on the driving experience of a group of insulin-using

drivers and use that information to support amending, if warranted, the

current diabetes requirement.2

\2\ The current Federal diabetes standard for CMV drivers

requires no established medical history or clinical diagnosis of

diabetes mellitus currently requiring insulin for control. 49 CFR

391.41(b)(3).

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On July 29, 1993, the FHWA published in the Federal Register a

Notice of Final Disposition allowing certain insulin-using diabetic

drivers to operate a CMV in interstate commerce for a 3-year period.

Stringent conditions were established to satisfy the mandate that this

action be consistent with the safe operation of CMVs. These conditions

included at least three years of experience driving a CMV while the

individual had been using insulin to control his or her diabetes, a

good driving record (as in the vision waiver condition) and

certification from an endocrinologist that the diabetic condition will

not adversely impact on the applicant's ability to operate a CMV. In

addition, participants were required to monitor their blood glucose

levels using portable glucose monitoring devices and maintain accurate

logs, submit monthly driving activity reports to the FHWA, notify the

FHWA of any involvement in an accident and undergo biannual

examinations by an endocrinologist. Approximately 140 drivers were

accepted into the diabetes waiver program. For a complete description

of the diabetes waiver program, see 58 FR 40690, July 29, 1993.

The August 2, 1994, court decision in Advocates called into

question the FHWA's ability to issue waivers to insulin-treated

diabetic drivers because of the similar approach used to pre-qualify

drivers for participation in the diabetes waiver program.

Accordingly, the FHWA notified the diabetes waiver drivers, in

separate mailings on March 28, 1995, of the court's decision and

changes to the Vision and Diabetes Waiver Programs that allowed both

programs to continue until March 31, 1996. The FHWA established

stricter performance conditions for all participants, and enhanced the

FHWA's monitoring of the performance of the waived drivers in order to

ensure compliance with the statutory test as construed by the court.

Proposed Action

The FHWA now proposes that the waived drivers in the vision and

diabetes programs should be allowed to continue driving in interstate

commerce after March 31, 1996. The underlying basis for this proposal

is that the FHWA has significant data to show that the continued

operation of both waived groups of drivers, who total 2359 as of

November 1, 1995, would be consistent with the safe operation of CMVs.

Prior to being admitted into the study the waiver applicants had to

demonstrate a three-year period of accident-free driving performance,

coupled with an absence of serious traffic violations. Since the

program began, the data have shown that the driving performance of this

group of waived drivers was and continues to be better than the driving

performance of all CMV drivers collectively, based on data obtained

from the General Estimates Service (GES) as discussed more fully

below.3 Moreover, each driver in the waiver programs has been

closely monitored, in many cases for three years or more. Coupled with

their 3-year good driving record preceding the waivers, the drivers

have individually merited partial exemption from Secs. 391.41(b)(10) or

391.41(b)(3).

\3\ The GES is a national survey conducted by the National

Highway Traffic Safety Administration and was selected for use as

the best measure of the prevailing national norm relative to large

truck accidents.

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Consequently, the FHWA proposes to amend part 391 of the FMCSRs to

grant grandfather rights to all drivers holding a valid Federal vision

or diabetes waiver on March 31, 1996. By proposing the grandfather

provision, the FHWA intends to allow only those drivers who have been

granted temporary waivers to

[[Page 608]]

participate in the Federal vision and diabetes waiver programs,

numbering 2359 as of November 1, 1995, to continue to operate in

interstate commerce beyond March 31, 1996, subject to certain operating

conditions. This action would provide relief to these drivers who

otherwise would not be permitted to operate a CMV in interstate

commerce. These grandfather provisions would also be conditional in

order to further reduce any possible risk associated with those

drivers. In addition to the conditions regarding medical requirements

discussed below, the FHWA proposes to continue monitoring the

performance of these drivers through periodic checks.

Medical Requirements for Operating Under This Grandfather Provision

The FHWA recognizes that any person's medical or physical condition

may deteriorate in a short period of time. The FHWA proposes to require

an annual physical examination pursuant to Sec. 391.43, instead of

every 2 years as is required of other drivers, as an extra precaution

to ensure the continued safe operation of these drivers. Under this

provision, these drivers, as all other interstate drivers, must be

otherwise physically qualified pursuant to Sec. 391.41 of the FMCSRs.

In addition, the FHWA proposes that vision impaired drivers who

would be grandfathered as a result of this action be required to obtain

an annual vision examination by an ophthalmologist or optometrist

indicating that they have been examined within the past two months and

that the vision in the better eye is at least 20/40 acuity, corrected

or uncorrected. This information would be submitted to the medical

examiner at the time of the individual's annual physical qualification

examination under part 391 of the FMCSRs. Accordingly, the FHWA

proposes to amend part 391 to incorporate these conditions.

Similarly, diabetic drivers proposed to be grandfathered as a

result of this proposal would be required to obtain an annual

examination by a board certified/eligible endocrinologist who must

certify that the driver (1) has been examined within the past two

months; (2) is free of insulin reactions; (3) has the ability and has

demonstrated willingness to properly monitor and manage his/her

diabetes; and (4) does not have a diabetic condition that would

adversely affect his or her ability to operate a CMV. One is free of

insulin reactions if that individual has experienced less than one

documented, symptomatic hypoglycemic reaction per month. These drivers

would be required to carry a source of rapidly absorbable glucose and

continue to monitor their blood glucose using a portable glucose

monitoring device equipped with a computerized memory one hour prior to

and approximately every four hours while driving. Upon request, the

driver would submit his or her blood glucose logs to the

endocrinologist and/or the medical examiner or when otherwise directed

by an authorized agent of the FHWA. A copy of the endocrinologist's

report would be submitted to the medical examiner at the time of the

annual physical qualification examination under part 391 of the FMCSRs.

The FHWA proposes to require this group of drivers to carry a

medical examiners certificate stating: ``Medically qualified by

operation of 49 CFR 391.64.'' Drivers who do not provide a copy of the

required information from the ophthalmologist/optometrist or the

endocrinologist to the medical examiner at the time of their annual

physical qualification examinations cannot be recertified to continue

driving a CMV in interstate commerce under this proposed grandfather

provision.

Analysis

The FHWA's proposed action is supported by the findings in an

assessment prepared for the FHWA to determine the risk associated with

the exposure to the public that is represented by allowing waivered

drivers to continue driving after March 31, 1996. A copy of this

assessment is contained in the docket for public inspection.

Since the inception of the waiver programs, drivers with waivers

have been monitored continuously. The monitoring has involved comparing

the accident rates of the waivered drivers to rates of a reference

group, GES, that represent the safety level for drivers of large trucks

(10,000 lbs. or larger) in the United States. The overall accident

rates of the waivered group represent the cumulative number of

accidents for drivers still in the program at the time of the report.

To determine if the waivered drivers in the vision program posed an

excessive threat to public safety, the monitoring process used the 90

percent confidence intervals associated with each cumulative accident

rate and if the lower limit of that confidence interval did not exceed

the national accident rate, the drivers in the program were considered

not to be a threat to public safety.

To determine if the waivered drivers in the diabetes program posed

an excessive threat to public safety, it was decided that sampling

error and confidence intervals would play no role in the decision

process. This was done because the small sample of drivers who received

diabetes waivers would lead to wide confidence intervals. Rather, in

the event that the accident rate of the diabetes waiver group would

become larger than the national rate, notification would be made that

there could be a threat to public safety. In this case, the national

rate is treated as a constant since it is frequently expressed as an

official rate without a confidence interval.

Additional monitoring and more stringent conditions were

implemented in early 1995 in response to the Advocates decision and the

concerns raised by the safety community. In addition to the group

assessment, the waivered drivers were now subject to a day-by-day

individual assessment relative to program compliance, violations and

accidents. Drivers in violation of program conditions were identified

and removed if warranted; thereby identifying, in a timely fashion,

aspects of the program that could compromise public safety.\4\

Therefore in both cases, data presented below will represent drivers

who are still in the program as of this notice.

\4\ Vision: At the end of October, 1995, 2240 drivers remained

in the vision waiver program. A total of 317 drivers had their

waivers revoked. Two hundred and thirty one were revoked for failure

to submit monthly mileage reports. Twelve were revoked because of

convictions for serious traffic or disqualifying offenses. Sixty-

five were revoked for failure to submit a medical exam. Seven

waivers were canceled for medical reasons. Diabetes: At the end of

October, 1995, 119 drivers remained in the diabetes waiver program.

A total of seven drivers had their waivers revoked. Three were

revoked for failure to submit monthly mileage reports. One driver

had his waiver revoked because of a disqualifying offense. Three

were revoked for failing to submit a medical exam. Nine waivers were

canceled for medical reasons.

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Drivers With Vision Waivers

The FHWA examined the vision waiver data in terms of how the waiver

group performed in relation to the national population of large truck

drivers and the future risk of these drivers from their behavior across

time. An examination of the cumulative accident rates of the vision

waivered drivers has shown a steady decline, and by June 1995, the

cumulative accident rate (1.63) was significantly lower than the most

recent national rate (2.422).

An assessment of the trend in accident rates for this group was

performed since the future driving behavior of this group is important

to the disposition of the program. Findings from the evaluation of

accident data occurring in six-month periods indicate that there is a

decline in the total

[[Page 609]]

accident rates across the periods. This significant negative trend

suggests that these drivers are becoming increasingly careful in the

operation of CMVs.

Some accidents that are the fault of these drivers can be clearly

identified by virtue of an associated moving violation issued to a

waivered driver. All waivered drivers are required to report any

accident involvement whatsoever while operating a CMV and all accident

information is verified through each driver's State motor vehicle

record (MVR). Accidents associated with moving violations were examined

for six-month periods between July 1992 and June 1995. The accident

rates decreased across time with the exception of the period between

January 1994 and June 1994. One explanation for this anomaly could be

the severe winter weather that occurred in that period. The negative

trend for accidents associated with moving violations was not as

pronounced as the negative trend for total accidents for the waivered

group.

This evaluation of the performance data and assessment of risk

indicates that the drivers who received vision waivers and are

presently in the program will present no additional risk if they are

allowed to continue to drive after March 1996. This group of drivers

had accident rates initially (July 1992 to June 1993) that were

comparable to the general population of large truck drivers. Following

that period, their accident rates were consistently lower than the

national rate. That performance, coupled with a three-year period of

safe driving performance prior to being admitted into the program,

suggests that this group of drivers exhibits behavior which presents no

additional risk to the public.

With respect to future risk to the public, the data show a

decreasing trend in total accident rates over equal time periods across

driver participation in the waiver program. Accidents associated with a

moving violation also show a decreasing trend, though not as pronounced

as total accidents. This, combined with accident rates that are lower

than the national rate, shows that these drivers will be less of a

threat to public safety than the general population of CMV drivers.

Moreover, each driver's performance was individually assessed to the

extent that such driver met the requirements of the strengthened

conditions and closer monitoring in effect since February 1995.

Drivers With Waivers for Diabetes

Overall monitoring of this group is performed on a quarterly basis

in relation to the national accident rate for large trucks. As

previously mentioned, the national rate is treated as a constant and

any time the accident rate of the waivered group is larger than the

national rate, notification is made to the FHWA that there could be a

threat to public safety. From September 1993 to May 1995, 11 accidents

were reported and, during this same period, waivered drivers reported a

total of 3.83 million vehicle miles traveled (VMT). The accident rate

of the waivered drivers for this period is 2.872 accidents per million

VMT. This is larger than the 1993 national rate, 2.390 accidents per

million VMT. The property damage only accident rate for the waivered

drivers (2.089) is also larger than the comparable national rate

(1.782) as is the case for the fatal accidents (.261 for waiver group

versus .027 for the national rate).

Because of the warning systems, these accidents were analyzed on an

individual basis before decisions were made to continue the program. Of

the eleven accidents reported, only one was shown to be the fault of a

driver in the program. Although this driver was not initially charged

in this accident, the accident did involve a fatality and the waivered

driver was subsequently charged and convicted of involuntary

manslaughter. Consistent with the conditions, this driver's waiver has

been revoked and the driver has been dropped from the program.

In none of the other ten accidents was the waivered driver found to

be at fault. Most involved only incidental contact with another

vehicle. In fact, only three of the ten accidents would have been

reportable or recordable under applicable regulations due to injury or

damage. These three, plus the one involving a fatality, are the only

accidents which are actually comparable to the national data. Accidents

are not included in the national data unless there is a police report

and one of the involved vehicles is towed from the accident scene. This

is not the case for the waiver programs where all accidents are

included, regardless of how minor they are. If the same criteria were

to be applied to the waivered group, then only three of the eleven

accidents would be comparable to the national data and the resulting

accident rate for the drivers with waivers for diabetes would be .783

per million VMT. This rate is considerably below the national rate of

2.390. Based on this performance data and the demonstrated three-year

period of safe driving by this group prior to being admitted into the

waiver program, it is reasonable to conclude that these drivers are not

a high risk group.

Notwithstanding the good driving performance of these drivers, the

FHWA proposes to require the continued monitoring of the physical

conditions that have caused these drivers to be unqualified pursuant to

Sec. 391.41(b)(10) and Sec. 391.41(b)(3) of the FMCSRs. Therefore, the

FHWA is requiring annual medical examinations to evaluate the

disqualifying conditions in addition to the annual physical

qualification examinations pursuant to part 391 of the FMCSRs.

Notice of Determination

The FHWA believes that its proposed actions in this document are

consistent with the public interest and consistent with the safe

operation of commercial motor vehicles. Based on the performance data

gathered to date and the risk analysis performed on this data, the FHWA

proposes that the drivers who currently hold waivers from the Federal

vision and diabetes requirements should be allowed to continue to

operate CMVs in interstate commerce after March 31, 1996. The

statistics that have been gathered from these groups of waived drivers

indicate that these drivers have performed and continue to perform more

safely than those drivers in the general population of commercial

drivers. In addition to their good driving performance, the continued

monitoring of their physical condition and safety performance will

further ensure the continued safe operation of these CMV drivers. The

performance data collected under the vision and diabetes waiver

programs would be used as the basis for this proposal; however,

separate research proceedings would form the basis for any future

adjustments, if warranted, to the current vision and diabetes

standards.

Additionally, the proposal to permit these grandfathered drivers to

continue to work in their chosen field of occupation is consistent with

the public interest policy of employing persons with disabilities,

which is evidenced in both the Rehabilitation Act of 1973, Pub. L. 93-

112, 87 Stat. 355, as amended, and the Americans With Disabilities Act

of 1990, Pub. L. 101-336, 104 Stat. 327, as amended. Therefore, the

FHWA proposes to amend part 391 of the FMCSRs to incorporate these

grandfather provisions for these groups of drivers.

Technical Amendment

The FHWA is also proposing to relocate the provision in Part 391

providing limited exemptions for intra-

[[Page 610]]

city zone drivers. The current provision, required under the Motor

Carrier Act of 1988 (49 U.S.C. 31136(f)), is codified as paragraph (d)

of 49 CFR 391.2, General Exemptions. This action would redesignate the

provision, without any substantive change, as Sec. 391.62, where it is

more properly included in subpart G, Limited Exemptions.

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that the proposed action, if implemented,

would not be a significant regulatory action under Executive Order

12866 or under the regulatory policies and procedures of the DOT. It is

anticipated that the economic impact of this proposed rule would be

minimal because of its limited application and the small number of

affected drivers. Moreover, the action proposed herein would not have

any permanent effect on any existing safety standard. It would merely

continue the status quo by grandfathering some 2,300 drivers who have

been operating safely for substantial periods of time. Therefore, a

full regulatory evaluation is not required.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act, 5 U.S.C. 601-

612, the FHWA has evaluated the effects of this proposal on small

entities. The FHWA believes that this proposed action would not have a

significant economic impact on a substantial number of small entities

because this proposal is directed solely at a limited number and

narrowly defined population of CMV drivers operating in interstate

commerce. This proposal would not cause a major increase in costs or

prices and, therefore, would not have a significant effect on the

nation's economy. The FHWA intends to further evaluate the economic

consequences of this proposal on small entities in light of the

comments received in response to this notice.

Executive Order 12612 (Federalism Assessment)

This proposed rulemaking, if promulgated, would amend Part 391 of

the FMCSRs pertaining to the qualification of drivers. This action

would allow drivers who currently hold waivers from the Federal vision

and diabetes requirements to continue operating in interstate commerce

after March 31, 1996. This proposal has been analyzed in accordance

with the principles and criteria contained in Executive Order 12612.

Nothing in this proposal would directly preempt any State law or

regulation. This proposal would not limit the policymaking discretion

of the States. Therefore, the FHWA has determined that this proposal

does not have sufficient federalism implications to warrant the

preparation of a separate Federalism Assessment.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.217, Motor

Carrier Safety. The regulations implementing Executive Order 12372

regarding intergovernmental consultation on Federal programs and

activities apply to this program.

Paperwork Reduction Act

This program does not contain a collection of information

requirement for purposes of the Paperwork Reduction Act of 1980, 44

U.S.C. 3501-3520.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulatory Information Service Center publishes the Unified Agenda

in April and October of each year. The RIN contained in the heading of

this document can be used to cross reference this action with the

Unified Agenda.

List of Subjects in 49 CFR Part 391

Driver qualifications, Highways and roads, Highway safety, Motor

carriers, Motor vehicle safety.

Issued on: December 21, 1995.

Rodney E. Slater,

Federal Highway Administrator.

In consideration of the foregoing, the FHWA proposes to amend 49

CFR, subchapter B, chapter III, part 391 as set forth below:

PART 391--QUALIFICATIONS OF DRIVERS [REVISED]

1. The authority citation for part 391 continues to read as

follows:

Authority: 49 U.S.C. 504, 31133, 31136, and 31502; and 49 CFR

1.48.

Sec. 391.2 [Redesignated]

2. Part 391 is amended by redesignating Sec. 391.2, as Sec. 391.62,

and revising the section to read as follows:

Sec. 391.62 Limited exemptions for intra-city zone drivers.

The provisions of Secs. 391.11 (b)(1) and 391.41 (b)(1) through

(b)(11) do not apply to a person who:

(a) Was otherwise qualified to operate and operated a commercial

motor vehicle in a municipality or exempt intracity zone thereof

throughout the one-year period ending November 18, 1988;

(b) Meets all the other requirements of this section;

(c) Operates wholly within the exempt intracity zone (as defined in

Sec. 390.5);

(d) Does not operate a vehicle used in the transportation of

hazardous materials in a quantity requiring placarding under

regulations issued by the Secretary under 49 U.S.C. chapter 51; and

(e)(1) Was not yet 21 years of age on July 1, 1988; or

(2) Has a medical or physical condition which:

(i) Would have prevented such person from operating a commercial

motor vehicle under the Federal Motor Carrier Safety Regulations

contained in this subchapter;

(ii) Existed on July 1, 1988, or at the time of the first required

physical examination after that date; and

(iii) The examining physician has determined has not substantially

worsened since July 1, 1988, or at the time of the first required

physical examination after that date.

2. A new Sec. 391.64 is added to read as follows:

Sec. 391.64 Grandfathering for certain drivers participating in vision

and diabetes waiver studies.

(a) The provisions of Sec. 391.41(b)(3) do not apply to a driver

who was a participant in good standing on March 31, 1996, in a study

concerning the operation of commercial motor vehicles by insulin-

controlled diabetic drivers, provided:

(1) The driver is physically examined every year, including an

examination by a board-certified/eligible endocrinologist attesting to

the fact the driver is:

(i) Otherwise qualified under Sec. 391.41;

(ii) Free of insulin reactions (one is free of insulin reactions if

that individual has experienced less than one documented, symptomatic

hypoglycemic reaction per month);

(iii) Able to and has demonstrated willingness to properly monitor

and manage his/her diabetes; and

(iv) Not likely to suffer any diminution in driving ability due to

his/her diabetic condition.

(2) The driver agrees to and complies with the following

conditions:

(i) A source of rapidly absorbable glucose will be carried at all

times while driving;

(ii) Blood glucose levels are to be self-monitored one hour prior

to driving and

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at least once every four hours while driving or on duty prior to

driving using a portable glucose monitoring device equipped with a

computerized memory;

(iii) Blood glucose logs will be submitted to the endocrinologist

or medical examiner at the annual examination or when otherwise

directed by an authorized agent of the FHWA; and

(iv) A copy of the endocrinologist's report will be provided to the

medical examiner at the time of the annual medical examination; and

(v) A copy of the annual medical certification will be provided to

the employer for retention in the driver's qualification file and a

copy of the certification will be retained on his/her person while

driving for presentation to a duly authorized federal, state or local

enforcement official.

(b) The provisions of Sec. 391.41(b)(10) do not apply to a driver

who was a participant in good standing on March 31, 1996, in a study

concerning the operation of commercial motor vehicles by drivers with

visual impairment in one eye, provided:

(1) The driver is physically examined every year, including an

examination by an ophthalmologist or optometrist attesting to the fact

the driver

(i) Is otherwise qualified under Sec. 391.41; and

(ii) Continues to measure at least 20/40 (Snellen) in the better

eye.

(2) The driver provides a copy of the ophthalmologist or

optometrist report to the medical examiner at the time of the annual

medical examination.

(3) The driver provides a copy of the annual medical certification

to the employer for retention in the driver's qualification file and

retains a copy of the certification on his/her person while driving for

presentation to a duly authorized Federal, State or local enforcement

official.

3. Section 391.43 is amended by redesignating paragraphs (e), (f)

and (g) as paragraphs (f), (g) and (h), respectively and by adding a

new paragraph (e) to read as follows:

Sec. 391.43 Medical examination; certificate of physical examination.

* * * * *

(e) Any driver operating under a limited exemption authorized by

Sec. 391.64 of this part shall furnish the medical examiner with a copy

of the annual medical findings of the endocrinologist, ophthalmologist

or optometrist, as required under that section. If the medical examiner

finds the driver qualified under the limited exemption in Sec. 391.64,

such fact shall be noted on the Medical Examiner's Certificate.

* * * * *

4. Section 391.43 is further amended by inserting in the form

following newly designated paragraph (h), a new entry reading ``____

Qualified by operation of 49 CFR 391.64'' immediately following the

entry ``____ Medically unqualified unless driving within an exempt

intracity zone''.

Sec. 319.45 [Amended]

5. Section 391.45 is amended by revising ``Sec. 391.2(d)'' in

paragraph (b)(2) to read ``391.62, or only by operation of the

exemption in Sec. 391.64,''.

[FR Doc. 96-218 Filed 1-5-96; 8:45 am]

BILLING CODE 4910-22-P