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Process for Department of Veterans Affairs (VA) Physicians To Be Added to the National Registry of Certified Medical Examiners

American Government Special Collections Reference Desk

American Government

Process for Department of Veterans Affairs (VA) Physicians To Be Added to the National Registry of Certified Medical Examiners

T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
1 December 2016


[Federal Register Volume 81, Number 231 (Thursday, December 1, 2016)]
[Proposed Rules]
[Pages 86673-86684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28746]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 390 and 391

[Docket No. FMCSA-2016-0333]
RIN 2126-AB97


Process for Department of Veterans Affairs (VA) Physicians To Be 
Added to the National Registry of Certified Medical Examiners

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: FMCSA proposes amendments to the Federal Motor Carrier Safety 
Regulations (FMCSRs) to establish an alternate process for qualified 
physicians employed in the Department of Veterans Affairs (VA) 
(qualified VA physicians) to be listed on the Agency's National 
Registry of Certified Medical Examiners (National Registry). After 
training and testing, they become certified VA medical examiners that 
can perform medical examinations of commercial motor vehicle (CMV) 
operators who are military veterans, and issue Medical Examiner's 
Certificates (MECs) to those same operators as required by the Fixing 
America's Surface Transportation (FAST) Act.

DATES: Comments on this notice must be received on or before January 3, 
2017.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2016-0333 using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-

[[Page 86674]]

140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section for instructions on submitting 
comments, including collection of information comments for the Office 
of Information and Regulatory Affairs of the Office of Management and 
Budget.

FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Medical 
Programs Division, MC-PSP, Federal Motor Carrier Safety Administration, 
1200 New Jersey Avenue SE., Washington, DC 20590-0001 by telephone at 
202-366-4001 or by email, fmcsamedical@dot.gov. If you have questions 
on viewing or submitting material to the docket, contact Docket 
Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
NPRM (Docket No. FMCSA-2016-0333), indicate the specific section of 
this document to which each comment applies, and provide a reason for 
each suggestion or recommendation. You may submit your comments and 
material online or by fax, mail, or hand delivery, but please use only 
one of these means. FMCSA recommends that you include your name and a 
mailing address, an email address, or a phone number in the body of 
your document so that FMCSA can contact you if there are questions 
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
put the docket number, FMCSA-2016-0333, in the keyword box, and click 
``Search.'' When the new screen appears, click on the ``Comment Now!'' 
button and type your comment into the text box on the following screen. 
Choose whether you are submitting your comment as an individual or on 
behalf of a third party and then submit.
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the facility, please enclose a stamped, 
self-addressed postcard or envelope.
    FMCSA will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments. FMCSA may issue a final rule at any time after the close of 
the comment period.

B. Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this 
preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2016-0333, in the 
keyword box, and click ``Search.'' Next, click the ``Open Docket 
Folder'' button and choose the document to review. If you do not have 
access to the Internet, you may view the docket online by visiting the 
Docket Management Facility in Room W12-140 on the ground floor of the 
DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, 
between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal 
holidays.

C. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dottransportation.gov/privacy.

D. Advance Notice of Proposed Rulemaking Not Required

    Under the provisions of 49 U.S.C. 31136(f) and (g) (added by 
section 5202 of the FAST Act), FMCSA is required to publish an advance 
notice of proposed rulemaking when a rulemaking is likely to lead to 
the promulgation of a major rule, unless the Agency finds good cause 
that an ANPRM is impracticable, unnecessary, or contrary to the public 
interest. This NPRM is not subject to these provisions, because it is 
not likely to lead to the promulgation of a major rule.

II. Executive Summary

A. Purpose of the Proposed Rule

    The purpose of this proposed rule is to amend the Federal Motor 
Carrier Safety Regulations (FMCSRs) to establish a process for 
qualified physicians employed in the Department of Veterans Affairs 
(VA) (qualified VA physicians) to be listed on the Agency's National 
Registry of Certified Medical Examiners (National Registry). After 
training and testing they become certified VA medical examiners that 
can perform medical examinations of commercial motor vehicle (CMV) 
operators who are military veterans, and issue Medical Examiner's 
Certificates (MECs) to those same operators as required by the Fixing 
America's Surface Transportation Act (FAST Act), Public Law 114-94, 
div. A, title V, Sec.  5403, Dec. 4, 2015, 129 Stat. 1548 (set out as a 
note to 49 U.S.C. 31149).
    As stated in the FAST Act, qualified VA physicians must (a) be 
employed in the Department of Veterans Affairs; (b) be familiar with 
FMCSA's standards for, and physical requirements of, a CMV operator 
requiring medical certification; and (c) have never ``acted 
fraudulently'' with respect to such certification. Qualified VA 
physicians would be listed on the National Registry after completing 
training and testing provided by FMCSA and delivered through a web-
based training system operated by the VA, and, upon successful 
completion, be allowed to conduct medical examinations of and issue 
MECs only to CMV drivers who are veterans enrolled in the health care 
system established under 38 U.S.C. 1705(a) that operate a CMV (veteran 
operator).

B. Summary of Major Provisions

    Through this rulemaking, FMCSA would establish an alternate process 
for qualified VA physicians to complete comparable training and testing 
developed by FMCSA and delivered through the VA's Web-based training 
system prior to being listed on the National Registry. This is an 
alternative to VA physicians obtaining training and testing through the 
private sector.
    Qualified VA physicians are subject to the same provisions of 49 
CFR 390 subpart D, except for the differences in the eligibility, 
training, and testing requirements for any other healthcare 
professional seeking Medical Examiner (ME) certification. Qualified VA 
physicians must be either a doctor of medicine or doctor of osteopathy 
currently employed in the VA; be licensed, certified, or registered in 
accordance with applicable State laws and regulations to perform 
physical examinations; be familiar with FMCSA's standards for, and 
physical requirements of, a CMV operator requiring medical 
certification by completing training provided by FMCSA and delivered 
through a web-based training system operated by the VA; pass the 
medical examiner certification test provided by FMCSA and administered 
through a web-based training system operated by the VA; and have never 
``acted fraudulently'' with respect to such certification of a CMV 
operator, including by fraudulently

[[Page 86675]]

awarding a medical certificate. Qualified VA physicians register on the 
National Registry System, complete the training and testing provided by 
FMCSA and delivered through a web-based training system operated by the 
VA, and after fulfilling the requirements would be listed on the 
National Registry. Once certified and listed on the National Registry, 
qualified VA physicians become certified VA MEs.\1\ This will allow 
such physicians to conduct medical examinations of and issue MECs only 
to veteran operators enrolled in the VA health care system.
---------------------------------------------------------------------------

    \1\ For clarification, FMCSA is using the term qualified VA 
physician to define VA physician prior to becoming certified and 
listed on the National Registry while the term certified VA medical 
examiner refers to the individual who has been certified and listed 
on the National Registry.
---------------------------------------------------------------------------

    If a certified VA medical examiner is no longer employed in the VA, 
but would like to remain listed on the National Registry, the physician 
must update his or her registration information within 30 days or 
submit such a change in registration information prior to conducting 
any physical examination of a CMV driver or issuing any medical 
examiner's certificates. Therefore, after the registration is updated 
the certified VA medical examiner becomes a certified medical examiner 
who may perform physical examinations and issue certificates to any CMV 
driver.

C. Benefits and Costs

    The Agency estimates that costs of the proposed rule would be 
minimal, with an annualized value of $101,739 at a 7% discount rate. 
The costs would consist of Federal government information technology 
(IT)-related expenses, Help Desk operating costs, and curriculum and 
testing development. Insufficient data are available to quantify the 
benefits of the proposed rule, as FMCSA does not know how many 
qualified VA physicians will complete the certification process. FMCSA 
estimates the per-physician savings (for certifying qualified VA 
physicians seeking to become certified VA MEs listed on the National 
Registry) at $614, resulting from the use of online-only training and 
testing that eliminates travel costs. Non-quantifiable benefits may 
result from the increased availability for veteran operators to receive 
their DOT physical.

III. Abbreviations and Acronyms

CDL Commercial Driver's License
CLP Commercial Learner's Permit
CMV Commercial Motor Vehicle
DOT Department of Transportation
FMCSA Federal Motor Carrier Safety Administration
FMCSR Federal Motor Carrier Safety Regulations
FAST Act Fixing America's Surface Transportation Act
FR Federal Register
IRFA Initial Regulatory Flexibility Analysis
IT Information Technology
ME Medical Examiners
MEC Medical Examiner's Certificates
MER Medical Examination Report
National Registry National Registry of Certified Medical Examiners
RFA Regulatory Flexibility Act
Sec.  Section symbol
SDLA State Driver Licensing Agency
U.S.C. United States Code
VA Department of Veterans Affairs

IV. Legal Basis for the Rulemaking

    The legal authority for this proposed rule is derived from 49 
U.S.C. 31136 and 31149, as supplemented by section 5403 of the FAST 
Act. Section 31136(a)(3) requires that operators of CMVs be physically 
qualified to operate safely, as determined and certified by an ME 
listed on the National Registry. Section 31149(d) requires FMCSA to 
ensure that MEs listed on the National Registry are qualified to 
perform the physical examinations of CMV operators, and to certify that 
such operators meet the physical qualification standards. In order to 
ensure that MEs are qualified for listing on the National Registry, 49 
U.S.C. 31149(c)(1)(D) requires them to receive training based on core 
curriculum requirements developed by FMCSA in consultation with the 
Medical Review Board (established under 49 U.S.C. 31149(a)), to pass a 
certification examination, and to demonstrate an ability to comply with 
reporting requirements established by FMCSA.
    Section 5403 of the FAST Act supplements the general provisions of 
section 31149 by providing for physicians employed in the VA to be 
listed on the National Registry and to perform the physical examination 
of veterans who require a physical examination and a medical 
certificate to operate a CMV. In order to be qualified for listing on 
the National Registry, such physicians must be familiar with the 
physical standards and requirements for operators of CMVs. They must 
also have never been found to have acted fraudulently with respect to a 
medical examiner's certificate for a CMV operator. Certified VA MEs on 
the National Registry may perform examinations on, and issue medical 
examiner's certificates to, only veterans enrolled in the health care 
system operated by the VA.
    There is general authority to adopt regulations to implement these 
provisions from both 49 U.S.C. 31136(a) and 49 U.S.C. 31149(e). Such 
authority has been delegated to the Administrator of FMCSA by 49 CFR 
1.87.

V. Background

A. National Registry of Certified MEs

    Prior to the National Registry, there was no required training 
program for the medical professionals who conduct driver physical 
examinations, although the FMCSRs required MEs to be knowledgeable 
about the regulations (49 CFR 391.43(c)(1)). No specific knowledge of 
the Agency's physical qualification standards was required or verified 
by testing. As a result, some of the medical professionals who 
conducted these examinations were unfamiliar with FMCSA's physical 
qualification standards and how to apply them. These medical 
professionals may have also been unaware of the mental and physical 
rigors that accompany the occupation of CMV drivers, and how various 
medical conditions (and the therapies used to treat them) can affect 
the ability of drivers to safely operate CMVs.
    In 2012, FMCSA issued a final rule establishing the National 
Registry (77 FR 24104, April 20, 2012) to improve highway safety and 
driver health by requiring that MEs be trained and certified so they 
can effectively determine whether a CMV driver's medical fitness for 
duty meets FMCSA's standards. The program implements the requirements 
of 49 U.S.C. 31149 and requires MEs who conduct physical examinations 
for CMV drivers to meet the following criteria: (1) Complete certain 
training concerning FMCSA's physical qualification standards; (2) pass 
a test to verify an understanding of those standards; and (3) maintain 
and demonstrate competence through periodic training and testing. 
Following the establishment of the National Registry, the FMCSRs were 
amended to require drivers to be examined and certified by only those 
MEs listed on the Agency's National Registry, and only MECs issued by 
MEs listed on the National Registry will be acceptable as valid proof 
of medical certification.
    To be listed on the National Registry, MEs are required to attend 
an accredited training program and pass a certification test to assess 
their knowledge of FMCSA's physical qualifications standards and how to 
apply them to drivers. To maintain their certification and listing on 
the National Registry, MEs are required to complete training at five-
year intervals and to complete training and pass a recertification test 
every 10 years.

[[Page 86676]]

    Certified MEs listed on the National Registry who conduct medical 
examinations of CMV drivers are required to submit on a monthly basis 
via their individual password-protected National Registry account a CMV 
Driver Medical Examination Results Form, MCSA-5850, to FMCSA for each 
physical examination conducted. Certified MEs also are required to 
retain a copy of the Medical Examination Report (MER) Form, MCSA-5875, 
and MEC, MCSA-5876, for all drivers they examine and certify, for at 
least three years from the examination date. The MER Form, MCSA-5875, 
lists the driver's health history and specific results of the various 
medical tests and assessments used to determine if a driver meets the 
physical qualification standards set forth in 49 CFR part 391, subpart 
E. In addition, certified MEs are required to issue a MEC, Form MCSA-
5876, to those drivers who they determine meet FMCSA's physical 
qualification standards.

B. Medical Examiner's Certification Integration

    On April 23, 2015, FMCSA published the Medical Examiner's 
Certification Integration final rule (80 FR 22790), a follow-on rule to 
the National Registry, which requires MEs performing physical 
examinations of CMV drivers to use a newly developed MER Form, MCSA-
5875, in place of the former MER Form and to use Form MCSA-5876 for the 
MEC. In addition, beginning June 22, 2018, this rule will require 
certified MEs to report results of all CMV drivers' physical 
examinations performed (including the results of examinations where the 
driver was found not to be qualified) to FMCSA by midnight (local time) 
of the next calendar day following the examination. For commercial 
learner's permit (CLP) and commercial driver's license (CDL) 
applicants/holders, FMCSA will electronically transmit driver 
identification, examination results, and restriction information from 
the National Registry to the State Driver's Licensing Agencies (SDLAs). 
The Agency will also electronically transmit medical variance 
information for all CMV drivers to the SDLAs. MEs will still be 
required to provide drivers of CMVs that do not require a CDL/CLP with 
an MEC, Form MCSA-5876.

VI. Discussion of Proposed Rule

A. Overview

    As required by 5403 of FAST Act, FMCSA consulted with the Secretary 
of Veterans Affairs and is now proposing to establish a process for 
qualified VA physicians employed in the VA to be included on FMCSA's 
National Registry, perform medical examinations of CMV drivers who are 
veteran operators, and issue MECs to qualified drivers. Qualified VA 
physicians would be listed on the National Registry after registering 
on the National Registry System, and completing training and testing 
provided by FMCSA and delivered through a web-based training system 
operated by the VA. Upon successful completion, certified VA MEs will 
be allowed to conduct medical examinations of, and issue MECs only to, 
veteran operators enrolled in the VA health care system. In addition to 
the requirements proposed, certified VA MEs will be subject to some of 
the other provisions of 49 CFR 390 subpart D as are all other certified 
MEs listed on the National Registry.

B. Eligibility

    National Registry eligibility requirements for medical examiner 
certification require that the person be an advanced practice nurse, 
doctor of chiropractic, doctor of medicine, doctor of osteopathy, 
physician assistant, or other medical professional authorized by 
applicable State laws and regulations to perform physical examinations. 
As required by the statute, this proposed rule limits eligibility of 
qualified VA physicians to only those who are either doctors of 
medicine or doctors of osteopathy and employed in the VA.
    Consistent with the FAST Act, this proposed rule adds the 
requirement that qualified VA physicians must never have ``acted 
fraudulently'' with respect to such certification of a CMV operator, 
including fraudulently awarding a MEC.
    This proposed rule has different licensure requirements in that 
qualified VA physicians may be able to practice in additional States 
without being licensed, certified, or registered in each State. In 
accordance with the provisions of 38 U.S.C. 7402(a) and (b)(1), the VA 
Handbook 5005/85,\2\ Staffing (Qualification Standard for the 
Appointment of Physicians, GS-0602, in VA), that provides the physician 
qualification standards, states that physicians must possess a current, 
full and unrestricted license to practice medicine or surgery in a 
State, Territory, or Commonwealth of the United States, or in the 
District of Columbia, and must maintain current registration in the 
State of licensure if it is a requirement for continuing active, 
current licensure. The VA Handbook does not specify that physicians 
must be licensed in each State where they practice medicine. Assuming 
they meet licensure requirements prescribed by statute and VA policy, 
they may practice at any VA facility, regardless of its location or the 
practitioner's State of licensure. Therefore, this proposed rule would 
require qualified VA physicians who become certified to continue to be 
licensed, certified, or registered in a State to perform physical 
examinations. Similarly, this proposed rule would require qualified VA 
physicians who become certified to maintain documentation of State 
licensure, registration, or certification to perform physical 
examinations.
---------------------------------------------------------------------------

    \2\ http://www1.va.gov/vapubs/search_action.cfm?dType=2, 
accessed September 20, 2016.
---------------------------------------------------------------------------

C. Training Requirements

    Instead of completing a training program conducted by a private 
training organization that meets the requirements of 49 CFR 390.105, 
including providing training based on the core curriculum 
specifications developed by FMCSA, qualified VA physicians must become 
familiar with FMCSA's standards for, and physical requirements of, a 
CMV operator requiring medical certification. This would be 
accomplished by completing training provided by FMCSA and delivered 
through a Web-based training system operated by the VA. Since the 
training is being provided by FMCSA, it will be comparable to the core 
curriculum guidelines provided to private training organizations.\3\ 
The training would be an interactive, online training course and would 
include at least the following: (1) An overview of all FMCSA medical 
standards; (2) an overview of how the Federal medical exemption 
programs factor into the qualification decision; (3) an administrative 
component that includes an overview of the driver examination forms; 
and (4) information regarding the use of the National Registry and the 
National Registry System.
---------------------------------------------------------------------------

    \3\ See 78 FR 28403 (May 17, 2011) and https://www.regulations.gov/document?D=FMCSA-2008-0363-0096.
---------------------------------------------------------------------------

D. Testing Requirements

    Instead of completing the testing requirements of 49 CFR 390.107 by 
using a testing organization that has been approved by FMCSA to deliver 
the test, qualified VA physicians must pass a comparable certification 
test provided by FMCSA and administered through a Web-based training 
system operated by the VA. After completing the training described 
above, qualified VA physicians would be required to take a test and 
receive a passing grade. The grade received by each qualified VA

[[Page 86677]]

physician would be electronically transmitted from the Web-based 
training system to the National Registry System for posting to the 
physician's National Registry account.

E. Maintaining Certification

    One of the requirements for maintaining certification and continued 
listing on the National Registry is that certified MEs must continue to 
be licensed, certified, or registered, and authorized to perform 
physical examinations, in accordance with applicable State laws and 
regulations of each State in which the ME performs examinations. This 
proposed rule would require qualified VA physicians who become 
certified to continue to be licensed, certified, or registered in a 
State to perform physical examinations.
    Another requirement for maintaining certification and continued 
listing on the National Registry is that certified MEs must maintain 
documentation of State licensure, registration, or certification to 
perform physical examinations for each State in which the ME performs 
examinations. Because certified VA medical examiners may be able to 
practice in additional States without being licensed, certified, or 
registered in each State, this proposed rule would only require 
certified VA medical examiners to maintain documentation of State 
licensure, registration, or certification to perform physical 
examinations, again without reference to each State in which the 
physician performs examinations.
    If a certified VA medical examiner is no longer employed in the VA, 
but would like to remain listed on the National Registry, the physician 
must update his or her registration information within 30 days or 
submit such a change in registration information prior to conducting 
any physical examination of a CMV driver or issuing any medical 
examiner's certificates. Pursuant to its broad authority under 49 
U.S.C. 31149(c)(1)(D), FMCSA proposes to recognize the comparable 
training received by qualified VA physicians to be suitable for such 
physicians to continue to be listed on the National Registry. But 
physicians wishing to continue such listing must be licensed to perform 
physical examinations in any State where examinations of CMV drivers 
will be conducted. Therefore, after the registration is updated the 
previously certified VA medical examiner becomes a certified medical 
examiner who may perform physical examinations and issue certificates 
to any CMV driver.

F. Performing DOT Medical Examinations

    The National Registry regulations allow for certified MEs to 
perform examinations of all drivers requesting a DOT medical 
examination. This proposed rule would limit certified VA medical 
examiners, to conducting examinations of only veteran operators, while 
they are employed in the VA. This process would provide veteran 
operators with the option of utilizing their enrollment in the VA 
healthcare system to obtain their MECs.

G. Proposed Changes to Certification Requirements for All MEs

    After several years of evaluating the operation of the National 
Registry System, FMCSA proposes changes to the existing requirements 
for becoming a certified ME. FMCSA proposes to add a requirement that 
to receive ME certification from FMCSA, prior to taking the training 
and testing, a person must register on the National Registry System and 
receive a unique identifier. This has always been how the National 
Registry System has operated and is the first step in becoming a 
certified ME but was not specifically included in the regulation.
    Additionally, FMCSA proposes to remove the prohibition against an 
applicant taking the test more than once every 30 days. Since the 
regulation does not specify any actions that must be taken within the 
30-day waiting period (such as additional training), the Agency 
proposes to remove the provision.

VII. Section-by-Section Analysis

Part 390

Section 390.5 Definitions
    The Agency proposes adding new definitions for the terms 
``certified VA medical examiner,'' ``qualified VA physician'' and 
``veteran operator.''
Section 390.103 Eligibility Requirements for Medical Examiner 
Certification
    As a whole, FMCSA has reorganized and restructured the paragraphs 
of this section to introduce separate eligibility requirements for a 
qualified VA physician. Specifically, the Agency adds the word 
``either'' after ``must'' in paragraph (a). Additionally, it adds a new 
paragraph (a)(1)(ii). Third, FMCSA adds a new paragraph (a)(2) and 
deletes from (a)(3) the sentence stating ``An applicant must not take 
the test more than once every 30 days.'' Finally, the Agency adds the 
citation ``or (a)(2)'' to paragraph (b).
Section 390.105 Medical Examiner Training Programs
    The Agency adds a new paragraph (c) setting out the training 
requirements for qualified VA physicians.
Section 390.107 Medical Examiner Certification Testing
    FMCSA adds a new paragraph (e) setting out the testing requirements 
for qualified VA physicians.
Section 390.111 Requirements for Continued Listing on the National 
Registry of Certified Medical Examiners
    In paragraph (a)(2), FMCSA creates new paragraphs (i) and (ii). In 
new (a)(2)(i), the Agency deletes the word ``application'' and replaces 
it with ``registration.'' Additionally, in this paragraph, the cross-
reference is changed to ``Sec.  390.103(a)(1)(ii).'' Finally, the 
Agency adds a new paragraph (a)(2)(ii) that states what happens when a 
certified VA medical examiner is no longer employed by the VA.
    FMCSA divides both paragraphs (a)(3) and (a)(4) into two separate 
paragraphs: paragraph (i) with the existing requirements and new 
paragraph (ii) with the new requirements for certified VA MEs. In the 
new paragraph (a)(4)(i), FMCSA adds ``and (b)'' after Sec.  390.105(a). 
In paragraph (a)(5)(ii)(B), the cross-reference is updated to read 
``Sec.  390.103(a)(1)(iv) or (a)(2)(ii).''
    Finally, in paragraph (b), FMCSA changes the reference from ``(4)'' 
to ``(5).''
Section 390.115 Procedures for Removal From the National Registry of 
Certified Medical Examiners
    In paragraph (d)(2)(ii), the Agency changed the cross-reference to 
read ``Sec.  390.103(a)(1)(ii).'' Additionally, paragraph (d)(2)(v) is 
redesignated as (d)(2)(vi) and the Agency inserts new language for 
(d)(2)(v).
    In paragraph (f)(2), the cross-reference is changed to read ``Sec.  
390.103(a)(1)(ii).'' Paragraph (f)(4) is divided into two separate 
paragraphs: (i) With the existing requirements and new paragraph (ii) 
with the new requirements for certified VA MEs.

Part 391

Section 391.43
    Paragraph (b) is revised by adding ``Exceptions. (1)'' before ``A 
licensed optometrist'' and dividing the paragraph into two separate 
paragraphs: Paragraph (1) relating to an optometrist and new paragraph 
(2) relating to veteran operators.

[[Page 86678]]

VIII. Regulatory Analyses

A. E.O. 12866 (Regulatory Planning and Review and DOT Regulatory 
Policies and Procedures as Supplemented by E.O. 13563)

    This proposed rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866, Regulatory Planning and Review, 
as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011). It is 
also not significant within the meaning of DOT regulatory policies and 
procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February 
26, 1979) and does not require an assessment of potential costs and 
benefits under section 6(a)(3) of that Order. Therefore, the Office of 
Management and Budget has not reviewed the proposed rule under that 
Order. However, as required by 49 U.S.C. 31136(c)(2)(A), the Agency 
will consider the cost and benefits of this proposed rule. The Agency 
estimates the economic benefits and costs of the proposed rule would be 
less than $100 million annually.
    The objective of the proposed rule is to develop a direct process 
to allow qualified VA physicians employed in the VA to perform physical 
examinations for veteran operators and to list such physicians on the 
National Registry. Absent this proposed rule, qualified VA physicians 
may choose to become certified MEs listed on the National Registry; 
however, the resource and qualification burden to do so is greater than 
under the proposed rule. There are just 10 VA physicians certified and 
listed as MEs on the National Registry under the current process, a 
small fraction of the 49,943 listed MEs.\4\ The Agency lacks data to 
estimate whether the proposed rule would impact the number of qualified 
VA physicians who would obtain certification as certified VA MEs; 
however, as this proposed rule reduces the cost to do so, the Agency 
assumes that this number would increase or, at minimum, remain constant 
relative to the baseline.
---------------------------------------------------------------------------

    \4\ A total of 25 medical professionals employed in the VA are 
listed on the National Registry as of September 16, 2016; of these, 
10 are physicians. Nationwide, a total of 49,943 medical 
professionals are listed on the National Registry as of September 
12, 2016. See https://nationalregistry.fmcsa.dot.gov/NRPublicUI/home.seam (Accessed September 16, 2016).
---------------------------------------------------------------------------

    A detailed list of requirements to become a certified ME is in 
Sec.  390.103. The three requirements are:
     Must be licensed, certified, or registered according to 
State laws and regulations to perform physical examinations;
     Must complete required training from a training 
organization;
     Must pass the medical examiner certification test at an 
FMCSA-approved testing center.
    The requirements are modified by the proposed rule in order to make 
training and testing readily accessible to qualified VA physicians. In 
summary, the quantifiable benefits and costs of the proposed rule are: 
(1) Benefits in the form of cost savings for qualified VA physicians 
seeking to become certified VA MEs on the National Registry, through 
reductions in time and travel expenses; (2) costs associated with the 
development of an online training and testing module, and (3) 
information technology (IT) tasks required to construct an interface 
between the National Registry System and VA's web-based training 
system. The interface will provide a seamless transfer of completed 
training and testing information for each registered qualified VA 
physician to be listed on the National Registry.
    To estimate the benefits resulting from cost savings of the 
proposed rule, the Agency utilized estimated health care professionals' 
ME training and testing-related travel costs from the December 2011 
regulatory evaluation of the National Registry final rule.\5\ For the 
evaluation of the proposed rule, those costs are adjusted to 2015 
dollars in order to subsequently estimate the reduction in those costs 
attributable to the proposed rule. In the aforementioned 2011 
regulatory evaluation, the Agency estimated that 50 percent of health 
care professionals seeking to become certified MEs will complete the 
required training and testing online, while the remaining 50 percent 
will participate in classroom-based training. At present, there are no 
testing providers offering online testing. Adjusting for a 50/50 online 
vs. classroom split for training and the current absence of online 
testing, FMCSA estimates that in the baseline, a qualified VA physician 
seeking to become a certified VA ME would, on average, incur 4.5 hours 
of travel time costs and 105 miles of vehicle mileage expenses.\6\ 
Under the proposed rule, training and testing for qualified VA 
physicians will be online-only, using the VA's web-based training 
system. This eliminates the travel time costs and the vehicle mileage 
costs that would otherwise be incurred in the absence of the proposed 
rule. Four and a half hours of travel time per participating qualified 
VA physician would be saved. The Bureau of Labor Statistics (BLS) 
Occupational Employment Statistics, May 2015, data indicate the 
weighted average hourly wage for general practitioners, internists, 
physicians, and surgeons is $93.96.\7\ Adjusting this value for fringe 
benefits using data from the BLS Employer Costs for Employee 
Compensation database, a fringe benefit markup of 31 percent is 
applied, resulting in an hourly valuation of $123.09, rounded to $123 
for purposes of this analysis.\8\ At an average of 4.5 hours of travel 
time saved per participating qualified VA physician, the proposed rule 
would provide a per-physician savings of $554 ($553.50 = 4.5 x $123, 
rounded to the nearest whole number).
---------------------------------------------------------------------------

    \5\ The 2011 regulatory evaluation can be accessed at https://www.regulations.gov/document?D=FMCSA-2008-0363-0115 (Accessed 
September, 6, 2016).
    \6\ 4.5 hours assumes 3 hours roundtrip travel for training 
(incurred by 50% of qualified VA physicians) and 3 hours of 
roundtrip travel for testing (for 100% of qualified VA physicians). 
4.5 hours = (3 x 0.50 + 3 x 1.0). 105 miles of travel by vehicle 
assumes a 70-mile roundtrip distance for training (incurred by 50% 
of qualified VA physicians) and a 70-mile roundtrip distance for 
testing (incurred by 100% of qualified VA physicians). 105 = (70 x 
0.50 + 70 x 1.0). Distance and time inputs are consistent with those 
in the 2011 regulatory evaluation of the National Registry final 
rule.
    \7\ See http://www.bls.gov/oes/current/oes_nat.htm (Accessed 
September 6, 2016).
    \8\ The 31 percent fringe benefit markup is obtained from BLS 
series ``All Civilian Total benefits for Professional and related 
occupations; Percent of total compensation'' and corresponds to the 
Q1 2016 value.
---------------------------------------------------------------------------

    FMCSA separately estimates the cost savings resulting from the 
average reduction of 105 miles of travel per physician subsequent to 
the proposed rule. Consistent with the approach of the 2011 regulatory 
evaluation for the National Registry final rule, the Agency monetizes 
this benefit using the standard Internal Revenue Service (IRS) mileage 
rate. The 2015 standard IRS mileage rate is 57.5 cents per mile.\9\ By 
this measure, the per-physician travel expense savings is $60 ($60 = 
57.5 cents per mile x 105 miles, rounded to the nearest whole number).
---------------------------------------------------------------------------

    \9\ See https://www.irs.gov/tax-professionals/standard-mileage-rates/ (Accessed September 21, 2016).
---------------------------------------------------------------------------

    The total quantifiable benefit of the proposed rule (per qualified 
VA physician seeking to become a certified VA ME) is estimated to be 
$614. This estimate is the sum of the projected savings of $554 in 
travel time costs and $60 in travel expenses.
    Participation of qualified VA physicians in the National Registry 
is voluntary. It is important to note that the cost savings to the 
Federal government are specific to the elimination of time and travel 
expenses

[[Page 86679]]

associated with initial ME certification training and testing 
requirements, and not to subsequent refresher training and 
recertification testing.\10\
---------------------------------------------------------------------------

    \10\ 49 CFR 390.111(a)(5)(i) and (ii) require MEs to complete 
periodic training every 5 years after the date of issuance of their 
credential, and complete training and testing no later than 10 years 
after the date of issuance of their credential.
---------------------------------------------------------------------------

    There may also be non-quantifiable benefits of the proposed rule to 
veteran operators if qualified VA physicians' participation in the 
National Registry increases the availability of and access to certified 
VA MEs. This may reduce waiting periods for appointments for veteran 
operators enrolled in the VA health care system. Shorter waiting 
periods may expedite a veteran operator's ability to begin driving for 
personal income. Also, the potential addition of qualified VA 
physicians to the list of certified MEs in closer proximity to a 
veteran operator's residence may reduce the cost of travel time and the 
use of a personal vehicle for those veteran operators seeking to be 
examined by a certified VA ME.\11\ The Agency lacks data on the number 
of veterans enrolled in the VA healthcare system now, or in the future, 
who might take advantage of this benefit, or their proximity to a VA ME 
who might be added to the National Registry under this proposed rule. 
Therefore, FMCSA is unable to quantify this benefit of the proposed 
rule.
---------------------------------------------------------------------------

    \11\ The geographic diversity of VA medical professionals listed 
on the National Registry is limited in scope and number. The 25 VA 
practitioners listed on the National Registry are located in 16 
states. Of these VA practitioners, a total of 13 are located in 
California (2), Colorado (4), North Dakota (3) and Wisconsin (4). 
See https://nationalregistry.fmcsa.dot.gov/NRPublicUI/home.seam 
(Accessed September 16, 2016).
---------------------------------------------------------------------------

    The costs of the proposed rule are strictly IT systems-related and 
will be borne by the Federal government. These costs consist of: (1) 
Development of an online medical examiner certification training and 
testing module for qualified VA physicians; (2) development and 
maintenance of an interface between the VA's web-based training system 
and the National Registry System so that qualified VA physicians' 
certification training and test results can be transmitted to the 
National Registry; and (3) operation of the National Registry Help Desk 
to assist qualified VA physicians with registration for, and completion 
of, the online training and testing. The VA and FMCSA are responsible 
for developing the interface between their respective IT systems.
    FMCSA has executed a contract with consultants who will develop the 
online curriculum. The training module will include a test at the end 
to ensure that qualified VA physicians seeking to become certified VA 
MEs complete and fully understand the standards for, and physical 
requirements of, a CMV operator. The results of the test will be posted 
to his or her National Registry account. The estimated cost of this 
contract is $84,138.
    The IT system developer will be responsible for modifying the 
National Registry System so it will be able to accept VA physicians' 
training and test results from the VA's web-based training system and 
post results to each qualified VA physician's National Registry 
account. The contract is for $128,675. Presently, FMCSA assumes that 
the VA's costs of interface development are the same.
    The National Registry Help Desk contractor will staff the National 
Registry Help Desk to provide technical support to qualified VA 
physicians going through the National Registry registration and 
certification process and respond to telephone, written, and email 
inquiries regarding National Registry certification from qualified VA 
physicians, veterans, motor carriers, and other interested parties. 
FMCSA estimates costs for the first year of the contract are $46,200 
and $57,750 for the second year. Help Desk costs are assumed to be 
constant at $57,750 for the remaining eight years of the forecast 
period.

                                              Table 1--Estimated Information Technology and Help Desk Costs
                                                                       [in 2015$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               FMCSA
                  Year                      Curriculum       interface       Help desk     DVA interface       Total        Total  (3%      Total  (7%
                                            development     development       support       development   (undiscounted)  discount rate)  discount rate)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2018....................................         $84,138        $129,000         $46,200        $129,000        $388,338        $388,338        $388,338
2019....................................               0               0          57,750               0          57,750          56,068          53,972
2020....................................               0               0          57,750               0          57,750          54,435          50,441
2021....................................               0               0          57,750               0          57,750          52,849          47,141
2022....................................               0               0          57,750               0          57,750          51,310          44,057
2023....................................               0               0          57,750               0          57,750          49,816          41,175
2024....................................               0               0          57,750               0          57,750          48,365          38,481
2025....................................               0               0          57,750               0          57,750          46,956          35,964
2026....................................               0               0          57,750               0          57,750          45,588          33,611
2027....................................               0               0          57,750               0          57,750          44,261          31,412
                                         ---------------------------------------------------------------------------------------------------------------
    10-Year Total.......................          84,138         129,000         565,950         129,000         908,088         837,986         764,593
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized..............................  ..............  ..............  ..............  ..............  ..............          95,376         101,739
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The IT, interface development, Help Desk, and training and testing 
development costs incurred by FMCSA over the 10-year forecast period 
are summarized in Table 1. Total costs over the 10 year period are 
estimated at $908,088 on an undiscounted basis. The estimated costs at 
a 3 percent discount rate are $837,986, and $764,593 at a 7 percent 
discount rate. The annualized cost over the 10 year period is $95,376 
at a 3 percent discount rate and $101,739 at a 7 percent discount rate.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601 et seq.) 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (Pub. L. 104-121, 110 Stat. 857) requires Federal agencies to 
consider the effects of the regulatory action on small business and 
other small entities and to minimize any significant economic impact. 
The term ``small entities'' comprises small businesses and not-for-
profit organizations that are independently owned and operated and are 
not dominant in their fields, and governmental jurisdictions with

[[Page 86680]]

populations of less than 50,000. Accordingly, DOT policy requires an 
analysis of the impact of all regulations on small entities, and 
mandates that agencies strive to lessen any adverse effects on these 
businesses. Section 603(b) of the RFA requires the Agency to prepare an 
Initial Regulatory Flexibility Analysis (IRFA) that assesses the impact 
of the proposed rule on small entities. The information that satisfies 
the requirements for an IRFA is provided below.
1. A Description of the Reasons Why the Action by the Agency Is Being 
Considered
    The proposed rule is being issued to fulfill the requirement of 
section 5403 of the FAST Act that requires the Secretary of 
Transportation, in consultation with the Secretary of Veterans Affairs, 
to develop a process for qualified VA physicians to be certified and 
listed on the Agency's National Registry. By doing so, veteran 
operators enrolled in the VA health care system will be able to obtain 
their medical examinations and MECs using their VA health care 
benefits. Currently, veteran operators enrolled in the VA health care 
system, more likely than not, would go outside the VA health care 
system because there are only 25 VA medical professionals in the nation 
who are certified MEs, 10 of whom are physicians.
2. A Succinct Statement of the Objectives of, and the Legal Basis for, 
the Proposed Rule
    The objective of the proposed rule is to develop a process to allow 
qualified VA physicians employed in the VA to be listed on the National 
Registry, perform medical examinations of veteran operators, and issue 
MECs to those that are qualified. Upon the proposed rule's compliance 
date, qualified VA physicians will be able to complete ME certification 
training and testing requirements using a web-based training system 
operated by the VA to become a certified VA ME. As noted above, at 
present, there are only 25 VA medical professionals across the nation 
listed on the National Registry, 10 of whom are physicians. If more 
qualified VA physicians are listed on the National Registry, veteran 
operators enrolled in the VA health care system will have a greater 
likelihood of being able to obtain their medical examinations using 
their VA health care benefits.
    The legal authority for this proposed rule is provided by 49 U.S.C. 
31136 and 31149 and section 5403 of the FAST Act. Pursuant to 49 U.S.C. 
31136(a), FMCSA is authorized to require CMV operators to obtain 
periodic medical examinations performed by MEs who have received 
training on DOT physical standards. FMCSA created and administers the 
National Registry, in accordance with 49 U.S.C. 31149(d). In order to 
ensure that MEs are qualified for listing on the National Registry, 49 
U.S.C. 31149(c)(1)(D) requires them to receive training in core 
curriculum requirements developed by FMCSA in consultation with the 
Medical Review Board (established under 49 U.S.C. 31149(a)), to pass a 
certification examination, and to demonstrate an ability to comply with 
reporting requirements established by FMCSA.
    Section 5403 of the FAST Act directs the Secretary of 
Transportation, in consultation with the Secretary of Veterans Affairs, 
to develop a process for qualified VA physicians employed in the VA to 
be listed on the National Registry. In order to be qualified for ME 
certification and listing on the National Registry, the FAST Act 
requires that such physicians must be familiar with the physical 
standards and requirements for CMV operators. Qualified VA physicians 
listed on the National Registry may perform examinations of, and issue 
MECs to, only veterans enrolled in the VA health care system.
3. A Description and, Where Feasible, an Estimate of the Number of 
Small Entities to Which the Proposed Rule Will Apply
    FMCSA believes there are no small entities affected by this 
proposed rule.
4. A Description of the Proposed Reporting, Recordkeeping, and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Entities That Will Be Subject to the Requirement and 
Training Types of Professional Skills Necessary for Preparation of the 
Report or Record and, Where Feasible, an Estimate of the Number of 
Small Entities to Which the Proposed Rule Will Apply
    The proposed rule requires no new recording, recordkeeping, or 
other compliance requirements.
5. An Identification, to the Extent Practicable, of Relevant Federal 
Rules That May Duplicate, Overlap or Conflict With the Proposed Rule
    The Agency did not identify any Federal rules that duplicate, 
overlap, or conflict with the rule.
6. A Description of Any Significant Alternatives to the Proposed Rule 
That Minimize Any Significant Impacts on Small Entities
    FMCSA has considered whether the proposed rule is expected to have 
a significant economic impact on a substantial number of small 
entities. FMCSA believes there are no small entities affected by this 
proposed rule. Consequently, I certify that the proposed action would 
not have a significant economic impact on a substantial number of small 
entities.

C. Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities 
in understanding this proposed rule so that they can better evaluate 
its effects on themselves and participate in the rulemaking initiative. 
If the proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance; please consult the FMCSA point of 
contact, Christine A. Hydock, listed in the FOR FURTHER INFORMATION 
CONTACT section of this proposed rule.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman and the Regional Small 
Business Regulatory Fairness Boards. The Ombudsman evaluates these 
actions annually and rates each agency's responsiveness to small 
business. If you wish to comment on actions by employees of FMCSA, call 
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights 
of small entities to regulatory enforcement fairness and an explicit 
policy against retaliation for exercising these rights.

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $156 million (which is the 
value equivalent of $100,000,000 in 1995, adjusted for inflation to 
2015 levels) or more in any one year. Though this proposed rule would 
not result in any such expenditure, the Agency discusses the effects of 
this rule elsewhere in this preamble.

E. Paperwork Reduction Act

    This proposed rule would call for no new collection of information 
under the

[[Page 86681]]

Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

F. E.O. 13132 (Federalism)

    A rule has implications for Federalism under Section 1(a) of 
Executive Order 13132 if it has ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.''
    FMCSA determined that this proposal would not have substantial 
direct costs on or for States, nor would it limit the policymaking 
discretion of States. Nothing in this document preempts any State law 
or regulation. Therefore, this rule does not have sufficient Federalism 
implications to warrant the preparation of a Federalism Impact 
Statement.

G. E.O. 12988 (Civil Justice Reform)

    This proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

H. E.O. 13045 (Protection of Children)

    E.O. 13045, Protection of Children from Environmental Health Risks 
and Safety Risks (62 FR 19885, April 23, 1997), requires agencies 
issuing ``economically significant'' rules, if the regulation also 
concerns an environmental health or safety risk that an agency has 
reason to believe may disproportionately affect children, to include an 
evaluation of the regulation's environmental health and safety effects 
on children. The Agency determined this proposed rule is not 
economically significant. Therefore, no analysis of the impacts on 
children is required. In any event, the Agency does not anticipate that 
this regulatory action could in any respect present an environmental or 
safety risk that could disproportionately affect children.

I. E.O. 12630 (Taking of Private Property)

    FMCSA reviewed this proposed rule in accordance with E.O. 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights, and has determined it will not effect a taking of 
private property or otherwise have taking implications.

J. Privacy

    Section 522 of title I of division H of the Consolidated 
Appropriations Act, 2005, (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 
U.S.C. 552a note), requires the Agency to conduct a privacy impact 
assessment (PIA) of a regulation that will affect the privacy of 
individuals. This rule would not require the collection of any new 
personally identifiable information (PII) by the National Registry of 
Certified Medical Examiners system, but will establish a new process of 
collection for a specific group of individuals. In accordance with this 
Act, a privacy impact analysis is warranted to address the new process 
for collection of personally identifiable information contemplated in 
the proposed rulemaking. The Agency submitted a Privacy Threshold 
Assessment analyzing the proposed process for collection of personal 
information to the Department of Transportation, Office of the 
Secretary's Privacy Office for adjudication. The final adjudication 
from the DOT Privacy Officer will be incorporated into the Final Rule.
    The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies 
and any non-Federal agency which receives records contained in a system 
of records from a Federal agency for use in a matching program. The E-
Government Act of 2002, Public Law 107-347, 208, 116 Stat. 2899, 2921 
(Dec. 17, 2002), requires Federal agencies to conduct a privacy impact 
assessment for new or substantially changed technology that collects, 
maintains, or disseminates information in an identifiable form.
    Pending the adjudication from the DOT Privacy Officer, the FMCSA 
Privacy Officer has evaluated the risks and effects that this 
rulemaking might have on collecting, storing, and sharing Personally 
Identifying Information and has examined protections and alternative 
information handling processes in developing the proposal in order to 
mitigate potential privacy risks. The privacy risks and effects 
associated with the doctor's registration records resulting from this 
rule are not unique and have previously been addressed by the doctor 
registration requirements in the National Registry of Certified Medical 
Examiners (National Registry) and the Medical Examiner's Certification 
Integration PIA published on April 27, 2015 and the DOT/FMCSA 009--
National Registry of Certified Medical Examiners (National Registry) 
System of Records Notice (77 FR 24247) published in the Federal 
Register on April 23, 2012. The PIA will be reviewed and revised as 
appropriate to reflect the Final Rule and will be published not later 
than the date on which the Department initiates any of the activities 
contemplated in the Final Rule determined to have an impact on 
individuals' privacy and not later than the date on which the system 
supporting implementation of the Final Rule is updated.
    Per the Privacy Act the Department is required to publish in the 
Federal Register for not less than 30 days a system of records notice 
(SORN) before it is authorized to collect or use PII retrieved by 
unique identifier. Following best practice, the SORN will be reviewed 
and revised as appropriate to reflect the Final Rule and would be 
published concurrently with the Final Rule publication; however an 
additional SORN for this rulemaking is not required by DOT policy at 
this time.
    The supporting National Registry PIA, available for review in the 
docket, gives a full and complete explanation of FMCSA practices for 
protecting PII in general and specifically in relation to the system 
addressed in the proposed rule.

K. E.O. 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 
program.

L. E.O. 13211 (Energy Supply, Distribution, or Use)

    FMCSA has analyzed this proposed rule under E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Agency has determined that it is not a 
``significant energy action'' under that order because it is not a 
``significant regulatory action'' likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Therefore, it 
does not require a Statement of Energy Effects under E.O. 13211.

M. E.O. 13175 (Indian Tribal Governments)

    This rule does not have tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes.

N. National Technology Transfer and Advancement Act (Technical 
Standards)

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through OMB, with

[[Page 86682]]

an explanation of why using these standards would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
(e.g., specifications of materials, performance, design, or operation; 
test methods; sampling procedures; and related management systems 
practices) are standards that are developed or adopted by voluntary 
consensus standards bodies. This rule does not use technical standards. 
Therefore, FMCSA did not consider the use of voluntary consensus 
standards.

O. Environment (NEPA, CAA, Environmental Justice)

    FMCSA analyzed this NPRM for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
determined this action is categorically excluded from further analysis 
and documentation in an environmental assessment or environmental 
impact statement under FMCSA Order 5610.1 (69 FR 9680, March 1, 2004), 
Appendix 2, paragraphs 6.d. The Categorical Exclusion (CE) in paragraph 
6.d covers regulations concerning the training, qualifying, licensing, 
certifying, and managing of personnel. The proposed requirements in 
this rule are covered by this CE and the proposed action does not have 
any effect on the quality of the environment. The CE determination is 
available for inspection or copying in the Federal eRulemaking Portal: 
http://www.regulations.gov.
    FMCSA also analyzed this rule under the Clean Air Act, as amended 
(CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing 
regulations promulgated by the Environmental Protection Agency. 
Approval of this action is exempt from the CAA's general conformity 
requirement since it does not affect direct or indirect emissions of 
criteria pollutants.
    Under E.O. 12898, each Federal agency must identify and address, as 
appropriate, ``disproportionately high and adverse human health or 
environmental effects of its programs, policies, and activities on 
minority populations and low-income populations'' in the United States, 
its possessions, and territories. FMCSA evaluated the environmental 
justice effects of this proposed rule in accordance with the E.O., and 
has determined that no environmental justice issue is associated with 
this proposed rule, nor is there any collective environmental impact 
that would result from its promulgation.

List of Subjects

49 CFR 390

    Highway safety, Intermodal transportation, Motor carriers, Motor 
vehicle safety, Reporting and recordkeeping requirements.

49 CFR 391

    Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor 
carriers, Reporting and recordkeeping requirements, Safety, 
Transportation.

    In consideration of the foregoing, FMCSA proposes to amend 49 CFR 
chapter 3, part 390 and 391 to read as follows:

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
1. The authority citation for part 390 is revised to read as follows:

    Authority:  49 U.S.C. 504, 508, 31132, 31133, 31134, 31136, 
31137, 31144, 31149, 31151, 31502; sec. 114, Pub. L. 103-311, 108 
Stat. 1673, 1677-1678; sec. 212, 217, Pub. L. 106-159, 113 Stat. 
1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as transferred by sec. 
4114 and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 
1726, 1743-1744); sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745; 
sec. 32101(d) and 32934, Pub. L. 112-141, 126 Stat. 405, 778, 830; 
sec. 2, Pub. L. 113-125, 128 Stat. 1388; sec. 5403, 5518, 5524, Pub. 
L. 114-94, 129 Stat. 1312, 1548, 1558, 1560; and 49 CFR 1.81, 1.81a 
and 1.87.

0
2. In Sec.  390.5, add the terms ``Certified VA medical examiner,'' 
``Qualified VA physician'' and ``Veteran operator'' in alphabetical 
order to read as follows:


Sec.  390.5   Definitions.

* * * * *
    Certified VA medical examiner means a qualified VA physician who 
has fulfilled the requirements and is listed on the National Registry 
of Certified Medical Examiners.
* * * * *
    Qualified VA physician means a doctor of medicine or a doctor of 
osteopathy who is employed in the Department of Veterans Affairs; is 
familiar with the standards for, and physical requirements of, an 
operator certified pursuant to 49 U.S.C. 31149; and has never, with 
respect to such section, been found to have acted fraudulently, 
including by fraudulently awarding a medical certificate.
* * * * *
    Veteran operator means an operator of a commercial motor vehicle 
who is a veteran enrolled in the health care system established under 
section of 38 U.S.C. 1705(a).
0
3. Revise Sec.  390.103 to read as follows:


Sec.  390.103   Eligibility requirements for medical examiner 
certification.

    (a) To receive medical examiner certification from FMCSA a person 
must either:
    (1) Be an advanced practice nurse, doctor of chiropractic, doctor 
of medicine, doctor of osteopathy, physician assistant, or other 
medical professional authorized by applicable State laws and 
regulations to perform physical examinations, and
    (i) Be licensed, certified, or registered in accordance with 
applicable State laws and regulations to perform physical examinations;
    (ii) Before taking the training provided below, register on the 
National Registry System and receive a unique identifier.
    (iii) Complete a training program that meets the requirements of 
Sec.  390.105(a) and (b); and
    (iv) Pass the medical examiner certification test provided by FMCSA 
and administered by a testing organization that meets the requirements 
of Sec.  390.107 and that has electronically forwarded to FMCSA the 
applicant's completed test information no more than three years after 
completion of the training program required by paragraph (a)(1)(iii) of 
this section; or
    (2) Be a doctor of medicine or a doctor of osteopathy employed in 
the Department of Veterans Affairs, and
    (i) Be licensed, certified, or registered in a State to perform 
physical examinations,
    (ii) Before taking the training provided below, register on the 
National Registry system and receive a unique identifier.
    (iii) Be familiar with FMCSA's standards for, and physical 
requirements of, a commercial motor vehicle (CMV) operator requiring 
medical certification, by completing the training program in Sec.  
390.105(c);
    (iv) Pass the medical examiner certification test provided by 
FMCSA, administered in accordance with Sec.  390.107(e) and has had his 
or her results electronically forwarded to FMCSA; and
    (v) Have never been found to have acted fraudulently with respect 
to any certification of a CMV operator, including by fraudulently 
awarding a medical certificate.
    (b) If a person has medical examiner certification from FMCSA, then 
to renew such certification the medical examiner must remain qualified 
under paragraph (a)(1) or (a)(2) of this section and complete 
additional testing and training as required by Sec.  390.111(a)(5).

[[Page 86683]]

0
4. In Sec.  390.105, add paragraph (c) to read as follows:


Sec.  390.105   Medical examiner training programs.

* * * * *
    (c) Instead of complying with paragraph (a) and (b) of this 
section, a qualified VA physician must complete training developed and 
provided by FMCSA and delivered through a Web-based training system 
operated by the Department of Veterans Affairs.
0
5. In 390.107, add paragraph (e) to read as follows:


Sec.  390.107   Medical examiner certification testing.

* * * * *
    (e) Instead of complying with paragraphs (a)-(d) of this section, 
to receive medical examiner certification from FMCSA, a qualified VA 
physician must pass the medical examiner certification test developed 
and provided by FMCSA and administered through a Web-based training 
system operated by the Department of Veterans Affairs.
0
6. In Sec.  390.111, revise paragraphs (a)(2), (3), (4), (a)(5) 
introductory text, (a)(5)(ii)(B), and paragraph (b).


Sec.  390.111   Requirements for continued listing on the National 
Registry of Certified Medical Examiners.

    (a) * * *
    (1) * * *
    (2) Registration information. (i) Report to FMCSA any changes in 
the registration information submitted under Sec.  390.103(a)(1)(ii) 
within 30 days of the change.
    (ii) A certified VA medical examiner who is no longer employed in 
the VA, but would like to remain listed on the National Registry, must 
either meet the requirements of paragraph (i) or submit this change in 
registration information prior to conducting any physical examination 
of a CMV driver or issuing any medical examiner's certificates.
    (3) Licensure. (i) Continue to be licensed, certified, or 
registered, and authorized to perform physical examinations, in 
accordance with the applicable laws and regulations of each State in 
which the medical examiner performs examinations.
    (ii) Instead of complying with paragraph (3)(i) of ths section, a 
certified VA medical examiner must continue to be licensed, certified, 
or registered, and authorized to perform physical examinations, in 
accordance with the laws and regulations of a State. If a certified VA 
medical examiner is no longer employed in the Department of Veterans 
Affairs, such physician must meet the requirements of paragraph (3)(i) 
of this section.
    (4) Documentation. (i) Maintain documentation of State licensure, 
registration, or certification to perform physical examinations for 
each State in which the examiner performs examinations, and maintain 
documentation of, and completion of, all training required by this 
section and Sec. Sec.  390.105 (a) and (b). The medical examiner must 
make this documentation available to an authorized representative of 
FMCSA or an authorized representative of Federal, State, or local 
government. The medical examiner must provide this documentation within 
48 hours of the request for investigations and within 10 days of the 
request for regular audits of eligibility.
    (ii) Instead of complying with paragraph (4)(i) of this section, a 
certified VA medical examiner must maintain documentation of licensure, 
registration, or certification in a State to perform physical 
examinations and maintain documentation of and completion of all 
training required by this section and Sec.  390.105(c). The certified 
VA medical examiner must make this documentation available to an 
authorized representative of FMCSA or an authorized representative of 
Federal, State, or local government. The certified VA medical examiner 
must provide this documentation within 48 hours of the request for 
investigations and within 10 days of the request for regular audits of 
eligibility.
    (5) Maintain medical examiner certification by completing training 
and testing according to the following schedule:
    (ii) * * *
    (A) * * *
    (B) Pass the test required by either Sec.  390.103(a)(1)(iv) or 
(a)(2)(iii).
    (b) FMCSA will issue a new medical examiner certification 
credential valid for 10 years to a medical examiner who complies with 
paragraphs (a)(1) through (5) of this section and who successfully 
completes the training and testing as required by paragraphs (a)(5)(i) 
or (ii) of this section.
0
7. In Sec.  390.115, revise paragraphs (b), (d)(2)(ii), (d)(2)(v), 
(d)(2)(vi), (f)(2) and (f)(4).


Sec.  390.115   Procedures for removal from the National Registry of 
Certified Medical Examiners.

* * * * *
    (b) Notice of proposed removal. Except as provided paragraphs (a) 
and (e) of this section, FMCSA initiates the process for removal of a 
medical examiner from the National Registry of Certified Medical 
Examiners by issuing a written notice of proposed removal to the 
medical examiner, stating the reasons that removal is proposed under 
Sec.  390.113 and any corrective actions necessary for the medical 
examiner to remain listed on the National Registry of Certified Medical 
Examiners.
    (d) * * *
    (2) * * *
    (ii) Report to FMCSA any changes in the registration information 
submitted under Sec.  390.103(a)(1)(ii) within 30 days of the 
reinstatement.
* * * * *
    (v) Instead of complying with paragraph (2)(iv) of this section, a 
certified VA medical examiner must maintain documentation of licensure, 
registration, or certification in a State to perform physical 
examinations and maintain documentation of and completion of all 
training required by this section and Sec. Sec.  390.105(c) and 
390.111(a)(iv) of this part. The certified VA medical examiner must 
make this documentation available to an authorized representative of 
FMCSA or an authorized representative of Federal, State, or local 
government. The certified VA medical examiner must provide this 
documentation within 48 hours of the request for investigations and 
within 10 days of the request for regular audits of eligibility.
    (vi) Complete periodic training as required by the Director, Office 
of Carrier, Driver and Vehicle Safety Standards.
* * * * *
    (f) * * *
    (1) * * *
    (2) Report to FMCSA any changes in the registration information 
submitted under Sec.  390.103(a)(1)(ii).
    (3) * * *
    (4) Documentation. (i) Maintain documentation of State licensure, 
registration, or certification to perform physical examinations for 
each State in which the person performs examinations and maintains 
documentation of completion of all training required by Sec. Sec.  
390.105(a) and (b) and 390.111(a)(4)(i). The medical examiner must also 
make this documentation available to an authorized representative of 
FMCSA or an authorized representative of Federal, State, or local 
government. The person must provide this documentation within 48 hours 
of the request for investigations and within 10 days of the request for 
regular audits of eligibility.
    (ii) Instead of complying with paragraph (4)(i) of this section, a 
certified VA medical examiner must maintain documentation of licensure,

[[Page 86684]]

registration, or certification in a State to perform physical 
examinations and maintain documentation of and completion of all 
training required by this section and Sec.  390.105(c) and 
390.111(a)(iv). The certified VA medical examiner must make this 
documentation available to an authorized representative of FMCSA or an 
authorized representative of Federal, State, or local government. The 
certified VA medical examiner must provide this documentation within 48 
hours of the request for investigations and within 10 days of the 
request for regular audits of eligibility.
* * * * *

PART 391--QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLES 
(LCV) DRIVER INSTRUCTORS

0
8. The authority citation for part 391 is revised to read as follows:

    Authority:  49 U.S.C. 504, 508, 31133, 31136, 31149, and 31502; 
sec. 4007(b) of Pub. L. 102-240, 105 Stat. 1914, 2152; sec. 114 of 
Pub. L. 103-311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106-159, 
113 Stat. 1748, 1767; sec. 32934 of Pub. L. 112-141, 126 Stat. 405, 
830; sec. 5403 and 5524 of Pub. L. 114-94, 129 Stat. 1312, 1548, 
1560; and 49 CFR 1.87.

0
9. In 391.43, revise paragraph (b) to read as follows:


Sec.  391.43   Medical examination; certificate of physical 
examination.

* * * * *
    (b) Exceptions. (1) A licensed optometrist may perform so much of 
the medical examination as pertains to visual acuity, field of vision, 
and the ability to recognize colors as specified in paragraph (10) of 
Sec.  391.41(b).
    (2) A certified VA medical examiner must only perform medical 
examinations of veteran operators.
* * * * *

    Issued under authority delegated in 49 CFR 1.87 on: November 23, 
2016.
T.F. Scott Darling, III,
Administrator.
[FR Doc. 2016-28746 Filed 11-30-16; 8:45 am]
 BILLING CODE 4910-EX-P

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