Qualification of Drivers; Vision and Diabetes; Limited Exemptions

SUMMARY: The FHWA announces a final determination and final rule 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 or the Federal diabetes waiver

study, who numbered 2210 and 116, respectively, as of March 1, 1996.

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 will be terminated on

March 31, 1996, and without this action, the drivers will no longer be

qualified to operate in interstate commerce after that date. With this

final rule, the FHWA allows these drivers to continue operations,

subject to certain operating conditions. This action 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.

EFFECTIVE DATE: This final rule and technical amendment are effective

March 31, 1996.

FOR FURTHER INFORMATION CONTACT: The FHWA has established a telephone

number to receive inquiries regarding this action. Contact Ann Dulaney

at (703) 448-3094. 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)) allows the Secretary of Transportation to issue

waivers from the Federal Motor Carrier Safety Regulations only after a

determination that such waivers are consistent with the public interest

and the safe operation of CMVs. The safety performance data collected

under the vision and diabetes waiver programs were used as the basis

for this determination. Historically, the FHWA has issued limited

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

exemptions. A separate research effort would form the basis for any

future adjustments, if warranted, to the current vision and diabetes

standards.

Vision Waiver Program Background

The FHWA announced its vision waiver study in a notice of final

disposition on July 16, 1992 (57 FR 31458). The intent of the program

was to obtain valuable information on the relationship between visual

capacity 1 and the ability to operate a CMV safely. This vision

waiver study program was initiated as part of an overall regulatory

review of the medical qualification standards applicable to interstate

CMV drivers. For a complete description of the waiver program, see the

FHWA's October 6, 1994, notice of determination; request for comments,

at 59 FR 50887.

\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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A. 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 lacked empirical support in

the record and accordingly, the court found that the FHWA 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.

B. Proceedings After the Court Decision

On November 17, 1994, the FHWA published a notice of final

determination in the Federal Register (59 FR 59386) extending the

validity of the vision waivers 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 plans to develop and impose more

stringent performance conditions to further reduce safety risks to the

waived drivers and highway users. For more complete information on the

FHWA's actions after the court decision, see 59 FR 50887 (October 6,

1994) and 61 FR 606 (January 8,1996).

Diabetes Waiver Program Background

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

notice of final disposition allowing certain insulin-using diabetic

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

purpose of the waiver study 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 Approximately 140 drivers were accepted into the

diabetes waiver program. For a complete description of the diabetes

waiver program, see 57 FR 48011 (October 11, 1992) and 58 FR 40690

(July 29, 1993).

\2\ The 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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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.

Comments

The FHWA has received over 960 separate comments to the docket in

response to the January 8, 1996, notice of proposed rulemaking (NPRM).

The majority of comments were from drivers in the waiver programs,

their families, and employers, all of whom favored the FHWA's proposal

to allow waived drivers in the vision and diabetes waiver programs to

continue driving in interstate commerce after March 31,

[[Page 13339]]

1996. Their comments addressed their safe driving records and the

significant economic and emotional hardships that would likely befall

them without the relief proposed in the NPRM. Other commenters in favor

of the proposal include the National Private Truck Council (NPTC), the

Owner- Operator Independent Drivers Association (OOIDA), the American

Association of Motor Vehicle Administrators (AAMVA), the State of Utah

Department of Public Safety, the U.S. Equal Employment Opportunity

Commission (EEOC), the Disabilities Law Project, the American

Optometric Association (AOA), Eglis K. Bogdanovics, M.D., the

International Brotherhood of Teamsters, Teamsters, Chauffeurs,

Warehousemen and Helpers (Local Union No. 110), Teamsters ``General''

(Local Union No. 200), the International Union of Operating Engineers

(IUOE) and the Institute for Public Representation of the Georgetown

University Law Center.

While the majority of the commenters supported the NPRM as

proposed, some supported it with slight modifications. Some of the

waived drivers believed that the required medical monitoring,

especially the requirement for an annual physical examination pursuant

to Sec. 391.43, instead of every 2 years as is required of other

drivers, was burdensome, expensive and unnecessary. One supporter

believed that the proposed level of medical monitoring was insufficient

and made recommendations for additional monitoring. Other supporters of

the NPRM contended that the FHWA's proposal did not go far enough and

urged the FHWA to extend its proposed grandfathering rights to other

similarly qualified drivers who were not currently participating in the

waiver programs and/or to amend its physical qualification standards to

allow individual determination of the ability to drive, rather than

blanket exclusions.

Phillips Petroleum Company supported the proposal for drivers

currently holding vision waivers, but opposed it for those drivers

holding diabetes waivers, stating that the insulin-using diabetic

drivers pose a higher medical risk with potentially disastrous

consequences. The American Trucking Associations (ATA) supported a

``case-by case review that considered the merits of individual waived

drivers,'' but opposed the broad issuance of waivers stating that the

``analysis doesn't justify grandfathering all waived drivers.''

Four commenters, the Advocates for Highway and Auto Safety (AHAS),

the Insurance Institute for Highway Safety (IIHS), Philip A. Shelton,

M.D., and Mr. Bernard Gustavsen, one of the waived drivers, opposed the

NPRM. The comments of the AHAS and IIHS addressed the reliability and

accuracy of the FHWA's risk assessment, use of the General Estimate

System 3 (GES) as a comparison group, existing scientific evidence

of the increased crash risk of drivers with diabetes and vision-

impairments and other factors which, they contend, support their

position that the FHWA should not grant grandfather rights to the

drivers holding a valid Federal vision or diabetes waiver on March 31,

1996. Dr. Shelton, chairman of the Medical Advisory Board of the

Department of Motor Vehicles of the State of Connecticut, believed that

the FHWA's NPRM, as proposed, was without merit and created a

privileged class of drivers. Mr. Gustavsen stated that he opposed the

waiver program and believed that all rules and regulations prior to the

waiver should remain enforced and be carried out to the fullest degree;

however, it is not clear whether Mr. Gustavsen understands that,

without his waiver of the current vision standard or grandfather rights

after March 31, 1996, he would not qualify to operate a CMV in

interstate commerce.

\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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These comments are more fully discussed below.

Discussion of the Comments

A. In Favor

The Disabilities Law Project, a non-profit law firm representing

individuals with disabilities including several waived drivers,

believed that unsafe drivers have been effectively screened out of the

waiver program and that the good driving performance of these remaining

drivers as well as the proposed medical monitoring requirements will

ensure the continued safe driving of this group of drivers.

Furthermore, this firm believes that the FHWA's proposed actions are

``consistent with 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.''

The NPTC, a national association representing more than 1100

companies that utilize proprietary trucks in their business activities,

believed the FHWA's proposal will be an important step in the FHWA's

overall efforts to establish performance-based standards. It cited the

drivers safe driving performance and emphasized the need to continue

the medical monitoring. The NPTC believed ``the conditions FHWA has put

into place will effectively screen out any unsafe drivers and safeguard

the operation of CMVs.''

Egils K. Bogdanovics, M.D., a practicing endocrinologist and board

member of the American Diabetes Association (Connecticut Affiliate)

commented as a member of the Medical Advisory Board of the Department

of Motor Vehicles of the State of Connecticut in support of the NPRM.

Dr. Bogdanovics stated that he was not surprised by the safe

performance of the diabetes drivers, and cited the waiver program data

to support his belief that motivated insulin-treated diabetics can

``scrupulously avoid hypoglycemia'' and operate CMVs safely.

The AOA strongly supported the FHWA's proposal to allow the drivers

in the vision waiver program to continue operating CMVs in interstate

commerce after March 31,1996; however, they were silent on whether

waived drivers in the diabetes program should be allowed to continue

driving. The AOA believed that an examination by an ophthalmologist or

optometrist as part of the medical requirements for operating under the

proposed grandfather provision was appropriate.

The AAMVA commented in support of the NPRM, but expressed some

reservations concerning the drivers in the diabetes waiver program.

Specifically, AAMVA was concerned about the potential effects of

hypoglycemia on CMV drivers. The American Diabetes Association, in

earlier comments to FHWA docket MC-87-17, noted that mild hypoglycemia

resulting in minor cognitive effects is not an immediately threatening

emergency, although it should be addressed immediately by ingesting

glucose. The FHWA believes that such ingestion can occur quickly and

without stopping the vehicle. Therefore, it is requiring that the

diabetic drivers carry a source of rapidly absorbable glucose while

driving. Individuals with severe hypoglycemic reactions or hypoglycemic

unawareness were excluded from participating in the program. The FHWA

believes that today's medical technology for screening individuals for

severe hypoglycemia and the proposed medical monitoring requirements,

including an annual examination by a endocrinologist, ensure that such

individuals will be detected and removed from the pool of diabetic

drivers operating under Sec. 391.64.

The OOIDA, a national trade association representing the interests

of

[[Page 13340]]

a large number of independent owner-operators and professional drivers

at both the Federal and State level, urged the FHWA to allow the waived

drivers to continue to operate in interstate commerce, stating that the

drivers ``have earned the privilege .... as evidenced by their safety

record.'' The OOIDA also believed that the medical monitoring

requirements were sound and that the affected drivers would not object

to these requirements in order to continue driving after March 31,1996.

The IBT, IUOE, and the EEOC, like OOIDA, supported the FHWA's

proposal to allow the waived drivers to operate in interstate commerce

after March 31, 1996, but they also urged the FHWA to move beyond this

proposed action and change the physical qualification requirements to

allow individual assessments of a driver's ability to safely operate a

CMV in interstate commerce. They cited the good driving performance of

the waived drivers and, therefore, concluded that the drivers were not

a high risk group.

Comments in the form of a legal brief were filed on behalf of two

self-employed interstate truck drivers by the Institute for Public

Representation of the Georgetown University Law Center. Both of the

drivers are petitioners in the United States Court of Appeals for the

8th Circuit, appealing the FHWA's decision to deny them waivers from

the vision standard. The comments were strongly supportive of the

proposed action, but strongly critical of the FHWA's failure to extend

the exemption to all other drivers ``identically situated.'' The brief

contends that the FHWA has de facto amended the standard, and that the

two drivers are now qualified under the amended standard.

The FHWA disagrees that these drivers are ``identically situated.''

Since neither has participated in the waiver program, neither has been

subject to the same performance standards, reporting requirements and

monitoring. The FHWA also disagrees that the standard has been changed,

but the agency is continuing its efforts to conduct the research

necessary to enable it to make the changes that are indicated when that

work is completed. The remaining arguments made in the comments are

best left for resolution by the court in the pending litigation.

The FHWA agrees that this group of drivers is not a high risk group

and will use their performance data to support allowing them to

continue driving after March 31, 1996. However, it does not plan to use

this data for any future adjustments to the vision and diabetes

standards; nor does the FHWA plan to reopen the waiver programs in

light of the Court decision in Advocates for Highway and Auto Safety v.

Federal Highway Administration, (28 F. 3d 1288, D.C. Circuit 1994). The

FHWA recognizes that there were weaknesses in the waiver study design

and believes that the waiver study has not produced, by itself,

sufficient evidence upon which to develop new vision and diabetes

standards. The waived group of drivers has perform as well as or better

than a similar group drawn from the general population of CMV drivers

because of the waiver program preselection criteria and conditions. The

FHWA's goal is to adopt driver physical qualification standards that

are more performance-oriented; that is, more reflective of the actual

physical requirements that foster safe operation of commercial

vehicles. Therefore, the FHWA has undertaken comprehensive research to

develop parameters for a more performance-based vision standard for all

commercial drivers and has initiated plans to conduct a retrospective

study to examine the risk associated with permitting insulin-using

diabetic individuals to operate commercial motor vehicles (CMVs).

Many waived drivers who supported the proposal stated that the

requirement for an annual physical qualification examination and

certification, instead of every two years as required for other

drivers, will be burdensome to drivers both financially and in terms of

time off from work to get the examination. Other waived drivers

believed that any further monitoring of their physical condition beyond

the current requirements for drivers operating in interstate commerce

is unwarranted for the above stated reasons and because their good

driving performance proves that they are not a high risk group.

The FHWA has determined that the requirements for an annual

physical qualification examination pursuant to Sec. 391.43 and annual

medical examinations by ophthalmologist or optometrist and

endocrinologists are not overly burdensome in light of the facts that

this group of drivers has physical conditions that would otherwise

disqualify them from interstate operations pursuant to

Sec. 391.41(b)(10) and Sec. 391.41(b)(3) of the FMCSRs and that an

individual's medical or physical condition may deteriorate over time.

In fact, some drivers' waivers were canceled because the disqualifying

condition for which they were waived had worsened or they had developed

other medical problems or conditions that caused them to be otherwise

unqualified pursuant to Sec. 391.41. Therefore, the FHWA will require

the annual physical qualification examination and certification in

addition to an annual eye examination for the vision impaired drivers

and an annual examination by an endocrinologist for diabetic drivers as

an extra precaution to ensure the continued safe operation of these

drivers.

The ATA, a national trade association representing the trucking

industry, commented in opposition to the broad issuance of waivers, but

stated it would support a case-by-case evaluation that considered the

merits of individual waived drivers. Notwithstanding the safe

performance of the drivers in the waiver program, the FHWA's decision

to allow this group of vision and diabetes waived drivers to operate

CMVs in interstate commerce has been and continues to be based on the

individual assessment of each driver's compliance with the waiver

program conditions, including driving performance and medical

requirements. Initially, to determine eligibility for participation in

the waiver programs, individual determinations were made on the basis

of complete data submitted. Each driver's application was individually

examined, any missing information was required to be furnished, and

each driver was measured against the waiver standards to assure that

all the conditions were met. Recognizing that this group of waived

drivers could potentially include some subpar drivers who individually

would present an unacceptable risk, the FHWA took steps to identify and

remove such drivers. The FHWA's monitoring systems, which have been in

effect since the inception of the programs, were later enhanced to more

promptly identify subpar performers among the waived group to ensure

that safety was maintained. The FHWA's periodic verification of the

waived drivers' reported accidents and citations through each driver's

State motor vehicle record (MVR) was increased to monthly monitoring.

Additionally, medical reports from the waived drivers have been

reviewed and verified. Therefore, the FHWA has determined that the 2326

drivers in the vision and diabetes waiver programs have individually

merited partial exemption from Secs. 391.41(b)(10) or 391.41(b)(3).

The ATA commented that the NPRM provided ``too little control''

over the drivers in the waiver programs. It suggested that the FHWA

should augment its proposed monitoring program by requiring (1) Copies

of the annual physical qualification examination and certification

pursuant

[[Page 13341]]

to Sec. 391.43 and the medical examinations by the appropriate medical

specialists be sent directly to the FHWA to be included in a database

of waived drivers, (2) that information concerning the driver's

activities at the time of an insulin reaction (hypoglycemia) be

reported, (3) FHWA notification to each driver 45 days in advance of

the expiration of the current physical qualification certificate, and

(4) the medical examiner to provide copies of the required

certifications to the employer and driver. Although the ATA considered

the monitoring conditions for operating under the proposed grandfather

provisions to be the foundation for an appropriate monitoring program,

the FHWA believes its proposed monitoring program, regarding medical

requirements and performance, is an extra precaution that enlarges the

current system of safeguards in place for all CMV drivers in the

general population. All of the drivers who will be operating under this

grandfather provision will be subject to State or Federal enforcement

or licensing sanctions and, in most cases, to the penalty provisions of

the commercial drivers' license regulations (49 CFR Part 383).

Furthermore, the FMCSRs currently require the medical examiner to

provide a copy of the medical certificate to the motor carrier. In

addition, the FMCSRs do not preclude employing motor carriers, the

first level enforcers under the regulatory scheme for the FMCSRs, from

imposing additional requirements to ensure that their drivers meet the

requirements under Sec. 391.41. Many motor carriers obtain copies of

the completed medical examination form to keep on file while others

will require certification by a medical examiner of their choice even

though the driver has a current medical examiner's certificate. Some

employers require both. The provisions in Sec. 391.64 will not preclude

motor carriers or other employers from obtaining additional information

on employees who will be operating under this grandfather provision.

Furthermore, the FHWA believes that the entire medical

determination process can best be delivered through a State-

administered program linked to the issuance and renewal of CDLs. After

the recent completion of six pilot demonstration programs to verify

these States' ability to integrate the medical determination process

with the CDL process, the FHWA recommended that this medical transfer

to the States be handled through a negotiated rulemaking process to

begin sometime in the summer 1996. The FHWA believes that merging the

medical determination process with the CDL process will provide further

scrutiny of the performance of all commercial drivers. Therefore, the

FHWA has determined that the monitoring conditions, as outlined in the

NPRM, are more than adequate to ensure the continued safe operation of

these drivers when viewed in the framework of the safeguards in place

for monitoring all commercial drivers. The proposed monitoring

conditions will provide safeguards for employers while not imposing an

undue burden on the grandfathered drivers.

The ATA expressed concern over potential changes to the medical

certificate as a result of this action and in light of additional

changes that may be forthcoming as a result of the FHWA's plans for

revising the medical examination form. Although the FHWA finds it

necessary to change the medical certificate to verify that a driver is

qualified to operate a CMV by operation under Sec. 391.64, the FHWA is

sensitive to ATA's concerns regarding an adequate lead time for

informational changes to forms and to the ATA's economic concerns as a

result of having to discard large inventories of current forms.

Therefore, the FHWA will allow the current medical certificate form to

be used until existing stocks are exhausted or until one year from the

effective date of the change, whichever comes first, provided that

medical examiners using existing forms make appropriate handwritten

notations of the required information on such forms.

The ATA's comments included a recommendation for a final report on

the FHWA's waiver programs. The FHWA will prepare a final report of its

efforts in this area and will give consideration to the ATA's

suggestions for information to be addressed in the report. The report

will be placed in the docket.

The ATA raised several issues concerning the risk assessment used

by the FHWA to justify granting grandfather rights to the waived

drivers after March 31, 1996. We believe that the ATA comments contain

a misunderstanding of the data presented in the Risk Assessment Report.

It stated that ``in assessing the accident rate of drivers in the

vision waiver program, it is reported that their rate was below that of

the general commercial vehicle driver population except for the period

January to June 1994.'' The ATA is erroneously combining statements

from two different tables. The NPRM did state that the accident rates

of these drivers were below that of the general commercial vehicle

driver population rate. That statement applied to Tables 1 and 2 in the

Risk Assessment Report which reported the rates for cumulative periods

of time from the beginning of the program. The accident rate given for

January to June 1994 (Table 4) was presented in the context of data to

be used for a trend analysis of independent time periods and no

comparison was made for that data relative to the general driver

population. The statement of the higher rate for that period was made

in the context that it represented a departure from the accident trend

across time. Even with this departure, the overall accident trend was

not increasing and, in fact, showed a decreasing trend.

The ATA also stated that there was a failure to analyze the

accident experience of the drivers in the two groups, vision and

diabetes, in the same manner. It is true that the accident rates of the

two groups were viewed in a different manner relative to the national

rate, but this was done because the numbers of drivers in the two

groups were so disparate (over 2,000 in the vision group versus

slightly more than 100 in the diabetes group) that the same method of

analysis could not appropriately be used for both. In the vision group,

confidence intervals were used to relate that group's accident rate to

the national rate. This was done because the number of drivers was of

sufficient size that the error of estimate for the accident rate would

not be so large as to allow the rate to get too much above the national

rate before safety concerns were alerted. Conversely, the small numbers

in the diabetes group provide an error of estimate for their accident

rate which is larger and, as a result, it was determined that the

actual rate without confidence intervals would be compared to the

national rate. When the diabetes group's rate became larger than the

national rate, a more detailed scrutiny of the drivers was made. If the

lower level of the confidence interval for the vision group's rate had

become larger than the national rate, a similar type of scrutiny would

have been done for that group. An overall approach of this type is

accepted practice to protect patients in clinical trials that

investigate the therapeutic use of pharmaceutical products.

The ATA and the AAMVA commented on the proposed requirement that

the endocrinologist certify that the driver is free of insulin

reactions (less than one documented, symptomatic hypoglycemic reaction

per month). The AAMVA misinterpreted this requirement concerning

hypoglycemia to mean that one hypoglycemic reaction per month

[[Page 13342]]

would be allowed, including severe hypoglycemic reactions. This was not

the FHWA's intent. The FHWA continues to believe that individuals with

severe hypoglycemia and hypoglycemia unawareness should be excluded

from operating CMVs. At the same time, the FHWA believes that mild

hypoglycemia is not an immediately threatening emergency, although it

must be addressed within a few minutes by ingesting glucose. The

reference, ``less than one documented, symptomatic hypoglycemic

reaction per month,'' was intended to provide guidelines to the

endocrinologist and medical examiner for evaluating the status of the

driver's diabetic condition for the preceding 12 months. This reference

was included because the FHWA was anticipating the question, `` What is

meant by free of insulin reactions?'' To clarify this issue, the FHWA

believes that an individual is free of insulin reactions if he or she

does not have severe hypoglycemia (i.e., episodes of altered

consciousness requiring the assistance of another person to regain

control) or hypoglycemia unawareness (i.e., the inability to recognize

the early symptoms of hypoglycemia), and has less than one documented,

symptomatic hypoglycemic reaction per month. Any one episode or a

series of documented, symptomatic hypoglycemia reactions should be

evaluated in terms of the individual's overall diabetic condition, and

whether the individual, as a result of such reactions, is likely to

experience any diminution in driving ability. The FHWA believes that

the more frequent medical evaluation and self-monitoring requirements

for operating under Sec. 391.64 will ensure that the drivers operating

under this grandfather provision who develop severe hypoglycemia or

hypoglycemia unawareness will be identified and promptly removed from

the pool of drivers.

B. In Opposition

The AHAS voiced strong opposition to the FHWA proposal to grant

grandfather rights to the drivers in the vision and diabetes waiver

program after March 21, 1996. In addition to rearguing the position it

took in the court proceedings, the AHAS criticized the proposal to

grandfather these drivers asserting that the FHWA relied on a

monitoring program that it characterized as lacking precision and

containing inaccuracies and inconsistencies. The AHAS stated that the

comparison of Table 1 and Table 2 in the FHWA Risk Assessment (October

12, 1995) shows a number of incongruities and that it is difficult to

perform cross-table comparisons.

These two tables in the Assessment were not intended to be

compared. As is stated in the text of the assessment (page 2), Table 1

is a compilation of data presented in the various monitoring reports

developed throughout the course of the program. The rates presented in

that table represent all drivers who were in the program at the time of

the particular monitoring report. Table 2, on the other hand, is a re-

examination of the accident data for only those drivers who are still

in the program as of October 1995 (as was stated in the text). Given

that this is a re-examination of those drivers in October 1995, it is

possible to retrospectively restructure the dates of accident rate

presentation with information available at that later date. Since the

tables were not intended for comparison, given that they are based on

different sets of drivers at different time periods with different

retrospective perspectives, the appearance of apparent incongruities is

not surprising. This misapplication is, unfortunately, exacerbated by

some typographical errors. In Table 1, the National Accident Rate for

the June 1994 comparison should be 2.400 instead of 2.422. In addition,

in Table 2, the year of the national accident rate for the June 1994

comparison should be 1992 rather than 1993.

Other apparent inconsistencies identified by AHAS are explained on

the basis of how data are reported to GES and to the waiver program.

For example, the AHAS stated that the national accident rate used for

June 1993 (the 1991 rate of 2.13) is different from that used just two

months later for August 1993 (the 1992 rate of 2.40). The use of

different rates is related to the availability of data from GES. The

results of the GES data acquisition process for any year usually become

available in late summer or early fall for the subsequent year. The

1992 GES data were not available in June 1993 but became available by

August 1993.

The AHAS also pointed out that, for June 1994, the smaller number

of drivers in Table 2 had a larger number of accidents (293) than the

number of drivers in Table 1 for that date (292). This is explained by

the nature of delays in reporting. The accidents reported in June 1994

in Table 1 are for the complete reporting period prior to that date.

The data reported in Table 2 is taken from complete data reported as of

October 1995.

The AHAS has also observed that the drivers remaining in the

program (Table 2) have persistently higher accident rates than those

shown when the program had fuller participation. The fuller program

data presented in the past contains drivers whose waivers were

subsequently revoked for a variety of reasons, only one of which was

prompted by the driver having an accident with a citation. Having an

accident with a citation is a relatively rare event, and the

preponderance of revocations occurs for reporting problems, such as

failure to report medical evaluations, mileage, violations, and other

required data. When these individuals are removed from the program,

their vehicle miles traveled (VMT) are also removed from reports but,

unless they also had accidents, there is no reduction in the overall

number of accidents reported. Therefore, the accident rates per million

VMT will naturally increase. Even with this increase, however, the

accident rates of those remaining in the vision waiver group are still

considerably lower than the national rate.

The AHAS has made several statements alluding to the inadequacy of

the study design in the diabetes waiver program. The AHAS claimed that

the inadequacies of the design undermine the ability of the FHWA to

draw inferences from the results. The AHAS' understanding of the

activities surrounding the diabetes waiver is inaccurate. The FHWA is

not presently conducting a study to generalize the feasibility of

issuing waivers to diabetic drivers. No inferences about a waiver

program will be drawn from these results. No research study has been in

place since the U.S. Court of Appeals' decision, cited above, regarding

the waiver programs. Since that time, the program has focused on the

monitoring of the drivers. This means that the procedures of

inferential research do not apply in this circumstance. In its place,

monitoring is conducted on multiple levels: in group monitoring to

compare the waived drivers' accident rates to the national accident

rate as a warning device, and thereafter, on a case-by-case basis if

the group monitoring indicates this is necessary.

Since the FHWA changed the focus of the waiver program, the AHAS's

comments concerning the study design have been resolved. For example,

given that no inference is drawn, the size of the sample is irrelevant.

Also, when the FHWA detects that the group accident rate in a

monitoring report exceeds the national rate, it is not contrary to

study methodology to use a case-by-case review, because the monitoring

effort is not a study. Moving to a case review is a prudent step in the

monitoring process. It is the same process as that

[[Page 13343]]

used in clinical trials to protect patient safety.

The AHAS stated that the conduct of case reviews is not a valid

means of conducting statistical analysis. In the context explained

above, this claim is clearly not relevant since the focus of the data

presentation in the diabetes monitoring report was comparative and not

a statistical analysis with such facets as confidence intervals.

The AHAS also stated that case-by-case evaluations are entirely

subjective since they are not based on such methods as accident

reconstruction. The contrast offered here is hardly valid because

accident reconstruction also has subjective components and is therefore

not entirely objective. In like manner, the case level analysis

conducted by the FHWA is not entirely subjective. The analysis at that

level seeks to determine if the reporting police officer has issued a

citation indicating that the driver may be at fault. The analysis also

examines the accident report to detect if there is any evidence of

driving behavior that could potentially indicate a hypoglycemic event,

such as crossing the median, swerving, or driving off the road. In the

cases where medical attention is given to the waivered driver, reports

on glucose levels are obtained. Therefore, both methods involved some

analytical decision making based on evidence.

The AHAS stated that the FHWA does not review GES data to eliminate

accidents in which the truck driver was at fault. It is true that the

FHWA did not do this, however, the FHWA did not compare the at-fault

accident rate of the diabetic group to the GES data. A comparison was

made for accidents when one vehicle was towed from the scene. This rate

for the diabetes group was 0.783. It was pointed out by the Insurance

Institute for Highway Safety that the rate should be compared with the

national rate for tow away accidents, which was estimated by the

University of Michigan's Transportation Research Institute (UMTRI) to

be 0.911. In this case, the diabetes group's rate is lower than the

national rate (0.783 vs 0.911).

The AHAS stated that there is a problem in the reporting process

which involves a lag-time in revealing accidents in the diabetes waiver

program. The FHWA recognizes that there is a lag in reporting accidents

in the monitoring report, but notes that there is no lag in examining

accidents as they are reported to the FHWA. The lag in reporting in the

monitoring report is due to the delay in the reporting of vehicle miles

traveled. Since the initial focus of the monitoring report is to

compare the group accident rate to the national rate, it is necessary

to have complete mileage data to construct the group accident rate. The

accidents that are combined with relevant mileage must be from the same

period of time, and mileage data reports lag behind the accident

reports. Accidents must be reported within 15 days of their occurrence.

Since accidents occur at random times, it is not possible to have

mileage reported concurrently with accidents. However, since the

accidents are usually reported first, they are examined to determine if

action should be taken relative to a particular accident.

The AHAS commented on its previous objection to the diabetes waiver

program that pointed out the safety dangers inherent in a plan that

relies on close monitoring. The FHWA is aware that an individual under

close or tight control has a greater propensity for episodes of

hypoglycemia than an individual under less rigid control. However, as

the FHWA stated in an earlier notice (58 FR 40690), it is not mandating

tight control for the drivers who will be operating under Sec. 391.64.

As already mentioned, individuals with severe hypoglycemia or

hypoglycemia unawareness were excluded from participating in the

diabetes waiver study program. Such individuals will continue to be

promptly identified, found unqualified, and removed from this pool of

drivers by virtue of the more frequent medical evaluation and self-

monitoring conditions for operating under Sec. 391.64.

The IIHS, in its comments opposing the FHWA's NPRM, stated that

``evidence continues to mount concerning the increased crash risk of

drivers with diabetes.'' To support this, it submitted three studies

(Dionne et al., 1995; Koepsell et al. 1994; Cox et al. 1993) which are

addressed below. While these studies are well-performed and their

results are clearly defensible, a closer scrutiny suggests that they

may not be as conclusive relative to the waiver group as IIHS implies.

For example, the Dionne (1995) study seems to show that diabetic

drivers of straight trucks have a 2.4 relative risk of accidents when

compared to healthy drivers. Taken in isolation, this result is

compelling. But viewed in the broader context of the study, it is less

conclusive relative to FHWA's waiver program. In particular, this study

also examined diabetic drivers of articulated trucks, and there was no

significant relative risk for that group. The authors of the study

state that it is difficult to explain why diabetic drivers of straight

trucks show elevated risk while this result does not hold for

articulated trucks. They speculate that the different results may be

due to company owners being more rigorous in their selection of drivers

for articulated trucks or that the results are due to different levels

of disease severity in the two groups of diabetic drivers.

This study does not distinguish between diabetic drivers who are

treated with insulin and those who are not. The authors also do not

report the number of diabetic drivers in relation to truck type. In

addition to not examining the interactive effects of disease severity,

the potential moderating effects of other factors (e.g., age and

driving behavior) are not analyzed. Thus, while the results are

significant in the context of straight trucks, the overall lack of

specificity strongly suggests that this outcome is preliminary and not

directly applicable to the waiver group.

Koepsell et al. (1994) reported that they found more than a two-

fold risk of crashes among diabetic drivers who were 65 years of age or

older. This would be consistent with the degenerative nature of the

disease relative to aging. However, the average age of the drivers in

the diabetes waiver group is slightly over 43 with less than one

percent (0.85%) 65 or older. That study, therefore, is not directly

relevant for the present group of drivers.

Cox et al. (1993) reported that in a group of 25 Type I diabetics

on a driving simulator, driving performance was significantly disrupted

under conditions of moderate hypoglycemia. However, it seems reasonable

that these study conditions, i.e. testing conducted under fasting

conditions and IV insertions in the arms of individuals being tested,

would, in and of themselves, affect overall performance. The limited

relevance of these study findings to the drivers in the FHWA waiver

programs is best represented by the Cox Study conclusion itself:

``Because we used a simulator, it is not clear to what extent these

data can be extrapolated to an individual's actual driving

performance.''

Regarding the crash risk of drivers with vision impairments, the

IIHS cited the Rogers and Janke study of California heavy vehicle

operators with vision impairments. This was a 1987 study conducted at

the request of the FHWA. While the study findings for this visually

impaired group showed that both their accident and conviction rates,

adjusted for age, were significantly and substantially higher than

those for visually nonimpaired drivers, the authors concluded that the

``evidence presented could not be considered compelling in

substantiating the federal standard, given the lack of good data on

[[Page 13344]]

possible exposure differences.'' Although not cited by the IIHS,

McKnight et al. (1985) concluded in their study of monocular and

binocular truck drivers that an individual's style of driving was a

more predictive measure of accident involvement than was visual status.

They found that monocular drivers showed deficiencies on a number of

clinical visual measures, but no differences were found between

monocular and binocular drivers in tasks of actual driving performance

(i.e., information interpretation, hazard detection, visual search,

lane keeping, clearance judgment, and gap judgment).

The IIHS claimed that there are a number of fallacies in the

reasoning that lead to the FHWA proposal. As a first fallacy, it

claimed that the FHWA's reasoning is based on a relatively clean

individual driving record predicting future low crash risk. The IIHS

indicated that this reasoning is faulty because a study of crashes in

California showed that two-thirds of the crashes in one year involved

drivers who had no accidents in the preceding three years.

Although this is a cogent result for individual drivers, it is not

reflective of the analysis conducted by the FHWA in making the

determination to grandfather this group of drivers. The FHWA has

determined that the current group, and only this group of drivers, as a

group, does not present an increased risk on the road. That is,

individuals may have unpredictable variability in accident behavior

across time but groups are not necessarily that labile. Groups can have

stable behavior over time when (1) preselected and (2) closely

monitored. The FHWA believes that by examining individuals in this

group, over the past three years, relative to a number of responsible

behaviors, the surviving group has stable behavior relative to a total

accident rate, a rate that is consistently lower than the national

rate. Moreover, when the accident rates of the drivers to be

grandfathered were examined in six-month periods, a significant

decreasing trend (page 5, Risk Assessment) was observed. Hence, while

the prediction of individual crash behavior is problematic, the fact

that this group has a lower accident rate than the national rates with

a significantly decreasing trend strongly support the FHWA's

determination that they will not present increased risk by driving on

the nation's roads, while being monitored.

Furthermore, the insurance industry continues to follow a practice

of setting insurance rates based on accident and conviction information

that becomes available to them, indicating by industry practice that

they believe a pattern of convictions and/or accidents does indicate a

higher risk of a future accident. Of course, the converse is more

appropriate, i.e., the absence of convictions and/or accidents

indicates a lower risk of a future accident--the so called ``safe

driver'' in insurance premium-setting parlance. This is consistent with

the findings of the many studies cited in the Notice of Final

Determination of November 17, 1994 (59 FR 59386) which support the

principle that past behavior, in terms of accidents and convictions, is

still the best predictor of future performance. Thus the FHWA believes

that in determining the relative risk of this group of waived drivers,

the same information being used by the insurance industry is a valid

measure that should be applied in making this decision regarding

relative performance of the drivers in this study versus the pool of

all drivers.

The IHS also claimed that GES is an inappropriate comparison group.

It stated that this has been noted by FHWA's consultant, Dr. Thomas

Songer, who pointed out that such factors as age and driving patterns

cannot be controlled in this manner of comparison. It is true that

ancillary factors cannot be controlled through a comparison with GES,

but the FHWA believes that this type of control is not of primary

interest in this situation where the decision involves safety on the

roads in general. For example, a study in which a control group is

selected, even randomly, and matched to the study group has as its

intent the achievement of internal validity in the comparison. But, as

is being increasingly pointed out in medical research where randomized

trials are the basis of good science, these controlled studies which do

not specifically address external validity have this as the chief

potential weakness with their results (U.S. General Accounting Office,

``Cross Design Synthesis; A New Strategy for Medical Effectiveness

Research,'' March 1992, GAO/PEMD-92-18). It is believed that external

validity is of primary concern in the decision to allow this group of

drivers to continue in their professions and, as a result, GES is the

best focus for this validity.

Another fallacy alleged by the IIHS involves the FHWA's statement

that most waivered drivers are not at fault in their crash involvement.

It stated that the problem concerns the subjective nature of fault

determination. The IIHS is correct in this finding and in its claim

that a waivered driver, while not at fault, could have an impaired

ability to react quickly. However, the IIHS' claim is not germane here,

given the behavior of the vision waiver group. Their accident rate,

even with the foregoing possibility, is still lower than the national

rate.

The IIHS is correct in its assertion that the FHWA has improperly

characterized the GES data. The FHWA was incorrect to state that

accidents are not included in GES unless one vehicle was towed from the

accident scene. The diabetes waiver group accident rate of .783 under

towed vehicle condition should not have been compared to the national

rate of 2.39. The IIHS was correct in stating that the 0.783 rate

should have been compared to the more appropriate rate (towaway

crashes) calculated by UMTRI which was 0.911. However, 0.783 is still

smaller than 0.911 and the rate ratio involving these two .783/

.911=.859) is less than one. For this particular group of drivers, this

piece of evidence suggests they are certainly not less safe than the

average CMV driver.

The IIHS stated that a limitation of the program was the methods

used to ascertain crash involvement and traffic violation citations.

The IIHS stated that self-reporting of crashes and violations is

problematic and the primary source of verification, motor vehicle

records, is less than complete. It is true that self- reporting can be

problematic and requires some form of verification. At present, the

FHWA verifies the waivered drivers' accident and violation reports in

three ways. In some cases, driver MVRs and driving histories are

obtained directly from States. Verification is also conducted by

obtaining driver records through a commercial provider that does

screening for automobile and truck rental companies and insurers. In

addition, the FHWA is able to obtain driver histories by querying the

Commercial Driver License Information System (CDLIS). The CDLIS is a

component of the national CDL program which has as one of its

procedures the requirement that States communicate the relevant

accident and violation information for out-of-State drivers to the

State of their licensing.

The IIHS' comments that jurisdictions ``are not forwarding all the

convictions to the primary licensing'' jurisdiction is an acknowledged

traffic record problem. However, for CDL drivers this is now an issue

subject to State compliance requirements. It is being addressed as part

of the overall effectiveness of the CDL program. There are a number of

efforts underway addressing the issue of convicting jurisdiction

reporting to the licensing jurisdiction, including efforts to increase

the awareness of various police organizations and courts regarding the

requirements of the CDL

[[Page 13345]]

program. The FHWA will continue to vigorously pursue this issue for all

licensees.

Determination

After a thorough review of the comments submitted in response to

the January 8, 1996, NPRM, the FHWA believes that grandfathering this

group of waived drivers to continue operating CMVs in interstate

commerce, subject to the operating conditions under Sec. 391.64, is

consistent with the public interest and the safe operation of CMVs, in

accordance with the Motor Carrier Safety Act of 1984 (49 U.S.C.

31136(e) (1994)).

The FHWA has documented the safe driving performance over a six-

year period for the vision waived drivers and over a five-year period

for diabetes waived drivers and determined that this group of waived

drivers will be allowed to continue driving in interstate commerce

after March 31, 1996, based on continuous and sustained safe

performance as a group. The underlying basis for this action is the

performance data gathered to date and risk analysis performed on this

data that show that the continued operation of both waived groups of

drivers, who total 2326 as of March 1, 1996, will be consistent with

the public interest and safe operation of CMVs. Prior to being admitted

into the study, the waiver applicants had to demonstrate a three-year

period of safe driving performance (i.e., no chargeable accidents and

no more than one serious traffic violation). Since the program began,

the data have shown that the driving performance of this group of

waived drivers is better than the driving performance of all CMV

drivers collectively, based on data obtained from the General Estimates

Service (GES). Moreover, each driver in the vision and diabetes waiver

programs has been closely monitored, in many cases for three years or

more, and the poorest performers have been eliminated. Coupled with

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

good driving during the waiver program has earned these drivers

individually partial exemption from Secs. 391.41(b)(10) and

391.41(b)(3), respectively.

In addition, the FHWA believes that the continued employment of

individuals with demonstrated safe driving records is in the public's

interest by allowing these individuals to gain employment in

occupations of their choice, by promoting economic viability and

furthering national policy and legislative goals articulated in both

the Rehabilitation Act of 1973 and the Americans with Disabilities Act

of 1992.

Therefore, the FHWA hereby amends 49 CFR part 391 to grant

grandfather rights to all drivers holding a valid Federal vision or

diabetes waiver on March 31, 1996. Under the grandfather provision, the

FHWA will allow only those drivers who have been granted temporary

waivers to participate in the Federal vision and diabetes waiver

programs, numbering 2326 as of March 1, 1996, to continue to operate in

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

conditions. This action will provide relief to these drivers who,

notwithstanding the demonstrated abilities of the group, would

otherwise not be permitted to operate a CMV in interstate commerce.

These grandfather provisions are conditional, in order to ensure the

continued safe operation of these drivers. In addition to the

conditions regarding medical requirements discussed below, the FHWA

will monitor 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 over time. Consequently, the FHWA will require a

physical examination every year under 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,

the waived drivers, like all other interstate drivers, must be

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

In addition, in this final rule, the FHWA requires the

grandfathered vision impaired drivers 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 must be submitted to the medical examiner at the time of

the individual's annual physical qualification examination under part

391 of the FMCSRs.

Similarly, diabetic drivers grandfathered as a result of this

action are 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. An individual is free of insulin reactions if he or she

does not have severe hypoglycemia (i.e., episodes of altered

consciousness requiring the assistance of another person to regain

control) or hypoglycemia unawareness (i.e., the inability to recognize

the early symptoms of hypoglycemia), and has less than one documented,

symptomatic hypoglycemic reaction per month. These drivers will 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 driving

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

driver must 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 must be

submitted to the medical examiner at the time of the annual physical

qualification examination under part 391 of the FMCSRs.

This final rule requires this group of drivers to carry a medical

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 grandfather provision.

Technical Amendment

In this final rule, the FHWA also relocates the provision in part

391 granting limited exemptions for intra-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 redesignates the provision, without any

substantive change, as Sec. 391.62, where it is more properly included

in subpart G, Limited Exemptions. Paragraph (d)(5)(i) of 49 CFR 391.2

is also being deleted as superfluous.

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this final rule is not 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 rule will be minimal because of its limited application

and the small number of

[[Page 13346]]

affected drivers. Moreover, this action will not have any permanent

effect on any existing safety standard. It will 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.

The FHWA finds that this final rule is exempt from the 30-day

delayed effective date requirement of U.S.C. 553(d) because it ``grants

or recognizes an exemption or relieves a restriction.'' Without this

action, CMV drivers in the agency's diabetes and vision waiver studies

would no longer be qualified to operate in interstate commerce after

March 31, 1996, the date on which these programs would otherwise end.

This final rule enables these drivers to continue operations, subject

to certain operating and monitoring conditions, granting an exemption

to the vision and diabetes standards of 49 C.F.R. 391.41 that would

otherwise soon apply to these drivers.

Regulatory Flexibility Act

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

612, the FHWA has evaluated the effects of this final rule on small

entities. The FHWA believes that this action will not have a

significant economic impact on a substantial number of small entities

because this action is directed solely at a limited number and narrowly

defined population of CMV drivers operating in interstate commerce.

This action will not cause a major increase in costs or prices and,

therefore, will not have a significant effect on the Nation's economy.

Executive Order 12612 (Federalism Assessment)

This rulemaking will amend 49 CFR part 391 pertaining to the

qualification of CMV drivers. This action will allow CMV drivers who

currently hold waivers from the Federal vision and diabetes

requirements to continue operating in interstate commerce after March

31, 1996. This rulemaking has been analyzed in accordance with the

principles and criteria contained in Executive Order 12612. Nothing in

this rulemaking will directly preempt any State law or regulation. This

rulemaking will not limit the policymaking discretion of the States.

Therefore, the FHWA has determined that this rulemaking 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 1995, Pub.

L. 104-13.

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, Highway safety, Motor carriers, Reporting

and recordkeeping requirements, Safety, Transportation.

Issued on: March 20, 1996.

Rodney E. Slater,

Federal Highway Administration.

In consideration of the foregoing, the FHWA amends title 49, CFR,

subtitle B, chapter III, part 391 as set forth below:

PART 391--QUALIFICATIONS OF DRIVERS

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 as Sec. 391.62]

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

and revising it 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

49 CFR 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) Has a medical or physical condition which:

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

motor vehicle under the Federal Motor Carrier Safety Regulations

contained in this subchapter;

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

physical examination after that date; and

(3) The examining physician has determined this condition has not

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

required physical examination after that date.

3. Section 391.64 is added to read as follows:

Sec. 391.64 Grandfathering for certain drivers participating in vision

and diabetes waiver study programs.

(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 waiver

study program 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 that the driver is:

(i) Otherwise qualified under Sec. 391.41;

(ii) Free of insulin reactions (an individual is free of insulin

reactions if that individual does not have severe hypoglycemia or

hypoglycemia unawareness, and has 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 shalll be carried at all

times while driving;

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

driving and 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) Submit blood glucose logs to the endocrinologist or medical

examiner at the annual examination or when otherwise directed by an

authorized agent of the FHWA;

[[Page 13347]]

(iv) Provide a copy of the endocrinologist's report to the medical

examiner at the time of the annual medical examination; and

(v) Provide a copy of the annual medical certification to the

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

copy of the certification 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 waiver

study program 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

that 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; by adding a new

paragraph (e); by revising the text preceding the Instructions in newly

designated paragraph (f) and the text preceding the Certificate in

newly designated paragraph (h); and by amending the medical examiner's

certificate form at the end of newly designated paragraph (h) by adding

a new listing after the words ``______ Qualified only when wearing a

hearing aid'' 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 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.

(f) The medical examination shall be performed, and its results

shall be recorded, substantially in accordance with the following

instructions and examination form. Existing forms may be used until

current printed supplies are depleted or until March 31, 1997.

* * * * *

(h) The medical examiner's certificate shall be in accordance with

the following form. Existing forms may be used until current printed

supplies are depleted or until March 31, 1997, provided that the

medical examiner writes down in pen and ink any applicable information

contained in the following form: MEDICAL EXAMINER'S CERTIFICATE

* * * * *

__Qualified by operation of 49 CFR 391.64

* * * * *

4. In Sec. 391.45, paragraph (b)(2) is revised to read as follows:

Sec. 391.45 Persons who must be medically examined and certified.

* * * * *

(b) * * *

(2) Any driver authorized to operate a commercial motor vehicle

only with an exempt intracity zone pursuant to Sec. 391.62, or only by

operation of the exemption in Sec. 391.64, if such driver has not been

medically examined and certified as qualified to drive in such zone

during the preceding 12 months; and

* * * * *

[FR Doc. 96-7226 Filed 3-21-96; 12:03 am]

BILLING CODE 4910-22-P