Qualification of Drivers; Exemption Applications; Diabetes Mellitus |
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Larry W. Minor
Federal Motor Carrier Safety Administration
29 May 2018
[Federal Register Volume 83, Number 103 (Tuesday, May 29, 2018)]
[Notices]
[Pages 24574-24576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11429]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[FMCSA Docket No. FMCSA-2018-0020]
Qualification of Drivers; Exemption Applications; Diabetes
Mellitus
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition.
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SUMMARY: FMCSA announces its decision to exempt 51 individuals from the
prohibition in the Federal Motor Carrier Safety Regulations (FMCSRs)
against persons with insulin-treated diabetes mellitus (ITDM) from
operating a commercial motor vehicle (CMV) in interstate commerce. The
exemptions enable these individuals with ITDM to operate CMVs in
interstate commerce.
DATES: The exemptions were applicable on March 17, 2018. The exemptions
expire on March 17, 2020.
FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief,
Medical Programs Division, (202) 366-4001, fmcsamedical@dot.gov, FMCSA,
Department of Transportation, 1200 New Jersey Avenue SE, Room W64-224,
Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m.,
e.t., Monday through Friday, except Federal holidays. If you have
questions regarding viewing or submitting material to the docket,
contact Docket Services, telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Electronic Access
You may see all the comments online through the Federal Document
Management System (FDMS) at: http://www.regulations.gov.
Docket: For access to the docket to read background documents or
comments, go to http://www.regulations.gov and/or Room W12-140 on the
ground level of the West Building, 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through Friday,
except Federal holidays.
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 http://www.regulations.gov, as described in
the system of records notice (DOT/ALL-14 FDMS), which can be reviewed
at http://www.dot.gov/privacy.
II. Background
On February 14, 2018, FMCSA published a notice announcing receipt
of applications from 51 individuals requesting an exemption from
diabetes requirement in 49 CFR 391.41(b)(3) and requested comments from
the public (83 FR 6685). The public comment period ended on March 16,
2018, and five comments were received.
FMCSA has evaluated the eligibility of these applicants and
determined that granting the exemptions to these individuals would
achieve a level of safety equivalent to or greater than the level that
would be achieved by complying with the current regulation 49 CFR
391.41(b)(3).
The physical qualification standard for drivers regarding diabetes
found in 49 CFR 391.41(b)(3) states that a person is physically
qualified to drive a CMV if that person has no established medical
history or clinical diagnosis of diabetes mellitus currently requiring
insulin for control.
III. Discussion of Comments
FMCSA received five comments in this proceeding. Vicky Johnson
stated that Minnesota Department of Public Safety is in favor of
granting exemptions to the following Minnesota drivers: Mark S.
Schellhammer, Daniel G. Roach, and Donald R. Heupel.
The Motor Vehicle Division (DMV) in the State of Montana reviewed
the driving record of Marty G. Niles and
[[Page 24575]]
found evidence that indicates Mr. Niles will not be able to achieve the
statutory level of safety. FMCSA met with representatives of the DMV
and reviewed Mr. Niles' driving record which had new information not
provided in the application submitted to the Agency. FMCSA determined
that Mr. Niles does meet the criteria to receive the exemption.
Tommy Friend and Austin Thies stated that they believe anyone who
decides to drive a CMV with diabetes should be allowed to do so without
discrimination. FMCSA believes that the individualized assessment of
exemption applicants addresses the commenter's concern about
discrimination, while maintaining an equivalent level of public safety.
FMCSA's exemption process supports drivers with ITDM who seek to
operate in interstate commerce. In addition, the FMCSRs are not
contrary to the Americans with Disabilities Act (ADA) of 1990. The
mandates of the ADA do not require that FMCSA alter the driver
qualification requirements contained in 49 CFR part 391. The Senate
report on the ADA, submitted by its Committee on Labor and Human
Resources, included the following explanation:
With respect to covered entities subject to rules promulgated by
the Department of Transportation regarding physical qualifications for
drivers of certain classifications of motor vehicles, it is the
Committee's intent that a person with a disability applying for or
currently holding a job subject to these standards must be able to
satisfy these physical qualification standards in order to be
considered a qualified individual with a disability under title I of
this legislation. S. Rep. 101-116, at 25 (1989).
The Agency's current approach, articulated in this Federal Register
notice, nevertheless meets the spirit of the ADA by conducting an
individualized assessment of each exemption applicant's medical history
and the concomitant level of safety risk. The Agency's case-by-case
review of exemption applicants provides the best assurance of drivers
being treated fairly, while at the same time addressing public safety
concerns.
George Benson states that if a person is truly taking care of their
diabetes, it should not take as long as it does to get the exemption
and the process does not have to be so difficult. FMCSA is required by
statute to complete the application process within 180 days from the
date all required information is submitted by the applicant. However,
this is often completed well in advance of this timeframe. This
timeframe includes time to review application information and meet
Federal Register publication requirements to include a 30-day public
comment period, as required by law.
IV. Basis for Exemption Determination
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption
from the diabetes standard in 49 CFR 391.41(b)(3) if the exemption is
likely to achieve an equivalent or greater level of safety than would
be achieved without the exemption. The exemption allows the applicants
to operate CMVs in interstate commerce.
The Agency's decision regarding these exemption applications is
based on the program eligibility criteria and an individualized
assessment of information submitted by each applicant. The
qualifications, experience, and medical condition of each applicant
were stated and discussed in detail in the February 14, 2018, Federal
Register notice (83 FR 6685) and will not be repeated in this notice.
These 51 applicants have had ITDM over a range of 1 to 47 years.
These applicants report no severe hypoglycemic reactions resulting in
loss of consciousness or seizure, requiring the assistance of another
person, or resulting in impaired cognitive function that occurred
without warning symptoms, in the past 12 months and no recurrent (two
or more) severe hypoglycemic episodes in the past five years. In each
case, an endocrinologist verified that the driver has demonstrated a
willingness to properly monitor and manage his/her diabetes mellitus,
received education related to diabetes management, and is on a stable
insulin regimen. These drivers report no other disqualifying
conditions, including diabetes related complications. Each meets the
vision requirement at 49 CFR 391.41(b)(10).
Consequently, FMCSA finds that in each case exempting these
applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is
likely to achieve a level of safety equal to that existing without the
exemption.
V. Conditions and Requirements
The terms and conditions of the exemption are provided to the
applicants in the exemption document and includes the following: (1)
Each driver must submit a quarterly monitoring checklist completed by
the treating endocrinologist as well as an annual checklist with a
comprehensive medical evaluation; (2) each driver must report within
two business days of occurrence, all episodes of severe hypoglycemia,
significant complications, or inability to manage diabetes; also, any
involvement in an accident or any other adverse event in a CMV or
personal vehicle, whether or not it is related to an episode of
hypoglycemia; (3) each driver must provide a copy of the
ophthalmologist's or optometrist's report to the Medical Examiner at
the time of the annual medical examination; and (4) each driver must
provide a copy of the annual medical certification to the employer for
retention in the driver's qualification file, or keeping a copy in his/
her driver's qualification file if he/she is self-employed. The driver
must also have a copy of the exemption when driving, for presentation
to a duly authorized Federal, State, or local enforcement official.
VI. Preemption
During the period the exemption is in effect, no State shall
enforce any law or regulation that conflicts with this exemption with
respect to a person operating under the exemption.
VII. Conclusion
Based upon its evaluation of the 51 exemption applications, FMCSA
exempts the following drivers from the diabetes requirement in 49 CFR
391.41(b)(10), subject to the requirements cited above:
Tina M. Adams (NY)
Steven A Bain (RI)
Joseph M. Ballard (MI)
Edward L. Barron (TX)
James A. Beck (KY)
George R. Benson (TX)
Jason D. Bonham (KS)
Dennis L. Bowden (CA)
Harry C. Davis (PA)
Warren E. Davis (IL)
Anderson N. Debitencourte (MA)
George M. Dickherber (MO)
Craig A. Dixon (IA)
Sandra M. Fazio (NH)
Thomas M. Gibbs (VA)
Willi M. Goolsbey (NM)
Eli J. Goudreau (MA)
John W. Green (IA)
Delight A. Halfred (SD)
Vernell Harris (IL)
Robert L. Harris (TN)
Donald R. Heupel (MN)
Michael J. Hobbs (TX)
Arnold Hollins (IL)
Sarvar Kachiev (IL)
Sidney G. Lehman (PA)
John H. Lowe, Jr. (CO)
Robert R. Martin (KS)
Christopher C. McMurray (CA)
Davis K. Mensah (VA)
Jeffrey R. Meyer (CA)
Kurtis A. Nichols (MO)
Marty G. Niles (MT)
[[Page 24576]]
Darrell E. Oliver (TN)
Timothy P. Oliver (OR)
Fred W. Payne (OR)
Ronald L. Pellack, Jr. (IL)
Edward F. Poe (MI)
Clint A. Richter (PA)
Daniel G. Roach (MN)
Mark S. Schellhammer (MN)
Edward R. Sutton (CA)
Maurice L. Talley (NV)
Brandon L. Tatman (CO)
Austin M. Thies (IA)
Robert J. Tischler (UT)
Michael Tucker (NJ)
Leonard J. Warnock (WA)
John R. Wohlers (WI)
David L. Woodfill (CA)
Daniel J. Woodring (MI)
In accordance with 49 U.S.C. 31136(e) and 31315, each exemption
will be valid for two years from the effective date unless revoked
earlier by FMCSA. The exemption will be revoked if the following
occurs: (1) The person fails to comply with the terms and conditions of
the exemption; (2) the exemption has resulted in a lower level of
safety than
was maintained prior to being granted; or (3) continuation of the
exemption would not be consistent with the goals and objectives of 49
U.S.C. 31136(e) and 31315.
Issued on: May 17, 2018.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2018-11429 Filed 5-25-18; 8:45 am]
BILLING CODE 4910-EX-P