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

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

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

Raymond P. Martinez
Federal Motor Carrier Safety Administration
11 June 2018

[Federal Register Volume 83, Number 112 (Monday, June 11, 2018)]
[Rules and Regulations]
[Pages 26846-26864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-12474]

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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: Final rule.

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SUMMARY: FMCSA amends the Federal Motor Carrier Safety Regulations
(FMCSRs) to establish an alternative process for qualified advanced
practice nurses, doctors of chiropractic, doctors of medicine, doctors
of osteopathy, physician assistants, and other medical professionals
who are employed in the VA and are licensed, certified, or registered
in a State to perform physical examinations (qualified VA examiners) to
be listed on the Agency's National Registry of Certified Medical
Examiners, as required by the Fixing America's Surface Transportation
(FAST) Act and the Jobs for Our Heroes Act. After successful completion
of online training and testing developed by FMCSA, these qualified VA
examiners will become certified VA medical examiners who can perform
medical examinations of, and issue Medical Examiner's Certificates to,
commercial motor vehicle operators who are military veterans enrolled
in the VA healthcare system. This rule will reduce the costs for
qualified VA examiners to be listed on the National Registry.

DATES: This final rule is effective August 10, 2018. Petitions for
Reconsideration of this final rule must be submitted to the FMCSA
Administrator no later than July 11, 2018.

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 or 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:
This final rule is organized as follows:

I. Rulemaking Documents
A. Availability of Rulemaking Documents
B. Privacy Act
II. Executive Summary
A. Purpose of the Amendments
B. Summary of Major Provisions
C. Benefits and Costs
III. Abbreviations and Acronyms
IV. Legal Basis for the Rulemaking
V. Background
A. National Registry of Certified Medical Examiners
B. Medical Examiner's Certification Integration
VI. December 1, 2016, Proposed Rule
VII. Discussion of Comments Received on the Proposed Rule
VIII. Explanation of Changes From the NPRM
IX. Section-by-Section Analysis
X. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and
Review), E.O. 13563 (Improving Regulation and Regulatory Review),
and DOT Regulatory Policies and Procedures
B. E.O. 13771 (Reducing Regulation and Controlling Regulatory
Costs)
C. Regulatory Flexibility Act
D. Assistance for Small Entities
E. Unfunded Mandates Reform Act of 1995
F. Paperwork Reduction Act
G. E.O. 13132 (Federalism)
H. E.O. 12988 (Civil Justice Reform)
I. E.O. 13045 (Protection of Children)
J. E.O. 12630 (Taking of Private Property)
K. Privacy
L. E.O. 12372 (Intergovernmental Review)
M. E.O. 13211 (Energy Supply, Distribution, or Use)
N. E.O. 13783 (Promoting Energy Independence and Economic
Growth)
O. E.O. 13175 (Indian Tribal Governments)
P. National Technology Transfer and Advancement Act (Technical
Standards)
Q. Environment (NEPA, CAA, Environmental Justice)

I. Rulemaking Documents

A. Availability of Rulemaking Documents

For access to docket FMCSA-2016-0333 to read background documents
and comments received, go to http://www.regulations.gov at any time, or
to Docket Services at U.S. Department of Transportation, Room W12-140,
1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays.

B. 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.transportation.gov/privacy.

II. Executive Summary

A. Purpose of the Amendments

This final rule amends the FMCSRs to establish an alternative
process for

[[Page 26847]]

qualified VA examiners to be listed on the Agency's National Registry
of Certified Medical Examiners (National Registry), as required in the
FAST Act, Public Law 114-94, div. A, title V, section 5403, Dec. 4,
2015, 129 Stat. 1312, 1548, as amended by the Jobs for Our Heroes Act,
Public Law 115-105, section 2, Jan. 8, 2018, 131 Stat. 2263 (set out as
a note to 49 U.S.C. 31149). Under current regulations, in order to
become a certified medical examiner (ME) and to be listed on the
National Registry, an individual must complete training in person or
online and pass a test administered at an FMCSA-approved testing
center. Under today's final rule, after successfully completing
training and passing a test, both of which will be provided by FMCSA
and delivered through a web-based training system operated by the VA,
these qualified VA examiners become certified VA MEs. Certified VA MEs
are only allowed to conduct medical examinations of, and issue Medical
Examiner's Certificates (MECs) to, commercial motor vehicle (CMV)
drivers who are veterans enrolled in the healthcare system established
under 38 U.S.C. 1705(a) (veteran operators). This rule will reduce the
costs for qualified VA examiners to be listed on the National Registry.
This rule also makes changes to the registration requirements
applicable to all MEs and eliminates the 30-day waiting period before
retesting.

B. Summary of Major Provisions

FMCSA amends the FMCSRs to establish an alternative process for
qualified VA examiners to be listed on the National Registry. To be
eligible to be listed on the National Registry as a certified VA ME, an
individual must: (1) Be an advanced practice nurse, doctor of
chiropractic, doctor of medicine, doctor of osteopathy, physician
assistant, or other medical professional currently employed in the VA;
(2) be licensed, certified, or registered in a State to perform
physical examinations; (3) register on the National Registry website
and receive a National Registry number; (4) be familiar with FMCSA's
standards and physical requirements for a CMV operator requiring
medical certification by completing training provided by FMCSA and
delivered through a web-based training system operated by the VA; (5)
pass the ME certification test provided by FMCSA and administered
through a web-based training system operated by the VA; and (6) never
have been found to have ``acted fraudulently'' with respect to
certification of a CMV operator, including by fraudulently awarding an
MEC. After fulfilling the foregoing requirements, qualified VA
examiners are listed on the National Registry and become certified VA
MEs.\1\ This final rule limits certified VA MEs to conduct medical
examinations of, and issue MECs to, veteran operators only. The final
rule clarifies the proposal in the notice of proposed rulemaking (NPRM)
that when a certified VA ME is no longer employed in the VA, he or she
must update the registration information in his or her National
Registry account on the National Registry website within 30 days of
leaving employment in the VA.
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\1\ For ease, FMCSA is using the term ``qualified VA examiner''
to refer to a VA advanced practice nurse, doctor of chiropractic,
doctor of medicine, doctor of osteopathy, physician assistant, or
other medical professional who is licensed, certified, or registered
in a State to perform physical examinations prior to becoming
certified and listed on the National Registry. The term ``certified
VA ME'' refers to a VA advanced practice nurse, doctor of
chiropractic, doctor of medicine, doctor of osteopathy, physician
assistant, or other medical professional who is licensed, certified,
or registered in a State to perform physical examinations once he or
she has been certified and listed on the National Registry.
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C. Benefits and Costs

The Agency estimates that costs of the final rule would be minimal,
with an annualized value of $117,000 at a 7 percent discount rate. The
costs would consist of Federal government information technology (IT)-
related expenses, Help Desk operating costs, and curriculum and testing
development. The Agency estimates cost savings to the qualified VA
examiners of $345,000, annualized at a 7 percent discount rate. The
cost savings result from the elimination of tuition costs and travel
time and expenses. The resulting annual net costs of the rule are -
$228,000, or alternatively, a net cost savings of $228,000. Additional
non-quantifiable cost savings may result from the increased
availability of certified VA MEs to veteran operators who receive
medical examinations through the VA.

III. Abbreviations and Acronyms

ACOEM American College of Occupational and Environmental Medicine
ATA American Trucking Associations
CAA Clean Air Act
CE Categorical Exclusion
CFR Code of Federal Regulations
CMV Commercial Motor Vehicle
DOT Department of Transportation
E.O. Executive Order
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FAST Act Fixing America's Surface Transportation Act
FR Federal Register
IRS Internal Revenue Service
IT Information Technology
ME Medical Examiner
MEC Medical Examiner's Certificate, Form MCSA-5876
MER Form Medical Examination Report Form, MCSA-5875
National Registry National Registry of Certified Medical Examiners
NEPA National Environmental Policy Act
NPRM Notice of Proposed Rulemaking
NYSCA New York State Chiropractic Association
OIG Office of Inspector General
OMB Office of Management and Budget
OOIDA Owner-Operator Independent Drivers Association, Inc.
PII Personally Identifiable Information
PIA Privacy Impact Assessment
PTA Privacy Threshold Assessment
Sec. Section symbol
U.S.C. United States Code
VA Department of Veterans Affairs

IV. Legal Basis for the Rulemaking

The legal authority for this final rule is derived from 49 U.S.C.
31136 and 31149, as supplemented by section 5403 of the FAST Act, as
amended. 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. 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. Section 5403 originally provided an alternative process
for a ``qualified physician'' employed in the VA to be listed on the
National Registry and to perform medical examinations of veteran
operators who require an MEC. FMCSA interpreted the term ``physician''
in the NPRM to mean a doctor of medicine or a doctor of osteopathy.
The Jobs for Our Heroes Act amended section 5403(d)(2) by expanding
eligibility to use the alternative process to a ``qualified examiner.''
The Act defines the term to mean an advanced practice nurse, doctor of
chiropractic, doctor of medicine, doctor of osteopathy, physician
assistant, or other medical professional who is employed in the VA and
licensed, certified, or

[[Page 26848]]

registered in a State to perform physical examinations. To be qualified
for listing on the National Registry, such individual must be familiar
with the physical standards and requirements for operators of CMVs. He
or she must also never have been found to have acted fraudulently with
respect to an MEC for a CMV operator. Certified VA MEs on the National
Registry may only perform examinations on, and issue MECs to, veterans
enrolled in the healthcare system operated by the VA.
The Jobs for Our Heroes Act and its expanded definition of the
medical professionals who could utilize the alternative process
proposed in the NPRM was enacted after FMCSA published the NPRM on
December 1, 2016. Ordinarily, agencies may promulgate final rules only
after issuing an NPRM and providing an opportunity for public comment
(5 U.S.C. 553). But when a final rule is a logical outgrowth of the
NPRM because it provided fair notice that the issue was being
considered by the Agency, no additional notice and opportunity to
comment is required. Long Island Care at Home, Ltd. v. Coke, 551 U.S.
158, 174-75 (2007) and cases there cited.
There also 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.
Before prescribing any regulations, however, FMCSA must consider
their ``costs and benefits'' (49 U.S.C. 31136(c)(2)(A) and 31502(d)).
These factors are discussed elsewhere in this preamble.

V. Background

A. National Registry of Certified Medical Examiners

Prior to the National Registry, there was no Federally-required
training and testing program for the medical professionals who
conducted driver medical examinations, although the FMCSRs required MEs
to be knowledgeable about the regulations (49 CFR 391.43(c)(1)).
Specific knowledge of the Agency's physical qualification standards was
not required or verified by testing. Thus, some of the medical
professionals who conducted these examinations may not have been as
familiar with FMCSA's physical qualification standards and how to apply
them as the Agency had intended. These medical professionals also may
have been unaware of the mental and physical rigors that accompany the
occupation of CMV driver, 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 National Registry, and to allow only MECs issued by
MEs listed on the National Registry to be accepted as valid proof of a
driver's 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 qualification standards and how to
apply them to drivers. To maintain their certification and listing on
the National Registry, MEs are required to complete periodic training
every 5 years and pass a recertification test every 10 years. They are
also required to submit to FMCSA, monthly, via their individual
password-protected National Registry account, a CMV Driver Medical
Examination Results Form, MCSA-5850, for each medical examination
conducted and to retain the original Medical Examination Report (MER)
Form and a copy of the MEC for at least 3 years from the date of the
examination.
As of May 31, 2017, there were 54,171 certified MEs listed on the
National Registry. Between May 21, 2014 and May 31, 2017, essentially
the first 3 years of the National Registry, 16,227,352 examinations
were conducted. Of the examinations conducted, 13,638,849 were of
commercial driver's license holders and 2,588,503 were of non-
commercial driver's license holders. In contrast, as of May 31, 2017,
there were only 114 certified MEs listed on the National Registry who
were employed in the VA. Between May 21, 2014 and May 31, 2017,
certified MEs who were employed in the VA conducted 14,260
examinations. Through this rulemaking, we hope to increase the number
of VA examiners and the number of CMV drivers they examine.

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 medical
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 the future, certified MEs will be required 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 and commercial driver's
license applicants/holders, FMCSA will electronically transmit driver
identification, examination results, and restriction information from
the National Registry to the State Driver Licensing Agencies. FMCSA
will also electronically transmit medical variance information for all
CMV drivers to the State Driver Licensing Agencies. MEs will still be
required to provide CMV drivers who do not require a commercial
learner's permit/commercial driver's license with an original paper
MEC, Form MCSA-5876.

VI. December 1, 2016, Proposed Rule

As required by section 5403 of the FAST Act, FMCSA consulted with
the Secretary of Veterans Affairs and published an NPRM on December 1,
2016 (81 FR 86673). The NPRM proposed an alternative process for
qualified VA physicians to be included on FMCSA's National Registry so
they could 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 website and completing training and testing
comparable to that required of other medical professionals, but
provided by FMCSA and delivered through a web-based training system
operated by the VA. FMCSA estimated the total quantifiable cost savings
of the proposed rule per qualified VA physician seeking to become a
certified VA ME to be $519. This estimate is the sum of the projected
savings of $459 in travel time costs and $60 in travel expenses. Upon
successful completion, certified VA MEs would only be

[[Page 26849]]

allowed to conduct medical examinations of, and issue MECs to, veteran
operators. Certified VA MEs would also be subject to the other
provisions of 49 CFR part 390, subpart D, required of all certified MEs
listed on the National Registry.
The NPRM outlined certain eligibility requirements. Based on
section 5403, prior to its amendment, this proposal applied to
qualified VA physicians who are either doctors of medicine or doctors
of osteopathy. Additionally, qualified VA physicians must never have
been found to have ``acted fraudulently'' with respect to certification
of a CMV operator, including fraudulently awarding an MEC. As for
licensure requirements, the proposal specified that qualified VA
physicians may be able to practice in VA facilities in all States
without being licensed, certified, or registered in each State. This
requirement is in line with the VA handbook, which does not specify
that physicians must be licensed in each State where they practice
medicine. Assuming they meet the 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.
As proposed, qualified VA physicians must be familiar with FMCSA's
standards and physical requirements for a CMV operator requiring
medical certification. This would be accomplished by completing
training based on the core curriculum specifications that would be
provided by FMCSA \2\ and delivered through a web-based training system
operated by the VA. As for testing, qualified VA physicians must pass a
comparable certification test provided by FMCSA and administered
through a web-based training system operated by the VA. The passing
grade received by each qualified VA 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.
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\2\ See 78 FR 28403 (May 17, 2011) and https://www.regulations.gov/document?D=FMCSA-2008-0363-0096.
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The proposed rule required qualified VA physicians who become
certified VA MEs to maintain their medical licensure, registration, and
certification records. However, because certified VA MEs may be able to
practice in additional States without being licensed, registered, or
certified in each State, the NPRM only required certified VA MEs to
maintain documentation of State licensure, registration, or
certification to perform physical examinations, without reference to
each State in which the physician performs examinations.
The proposal limited certified VA MEs to conducting medical
examinations of only veteran operators while employed in the VA. If a
certified VA ME 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 medical examination
of a CMV driver or issuing any MECs. Pursuant to its broad authority
under 49 U.S.C. 31149(c)(1)(D), FMCSA proposed to recognize the
training received by qualified VA physicians as comparable to that
received by other medical professionals, thus allowing 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 ME becomes a certified ME who may perform medical
examinations and issue certificates to any CMV driver in the certified
ME's State(s) of licensure.
In addition, the NPRM proposed two changes to the existing
requirements for becoming a certified ME. To receive ME certification
from FMCSA, prior to taking the training and testing, the NPRM required
a person to 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 it was not specifically included in the regulation. Moreover, the
NPRM proposed to remove the prohibition against an applicant taking the
certification test more than once every 30 days, because the regulation
does not specify any actions that must be taken within the 30-day
waiting period.

VII. Discussion of Comments Received on the Proposed Rule

Overview of Comments

In response to the December 2016 NPRM, FMCSA received 173 comments.
Many commenters were individuals, most of whom identified themselves as
certified MEs and healthcare professionals. Among other commenters were
the following: 10 professional chiropractic associations including the
Kentucky Association of Chiropractors, Federation of Chiropractic
Licensing Boards, American Chiropractic Association, California
Chiropractic Association, Iowa Chiropractic Society, Illinois
Chiropractic Association, New York State Chiropractic Association
(NYSCA), New York Chiropractic Council, Association of New Jersey
Chiropractors, and the Association of Chiropractic Colleges; three
other healthcare provider professional associations including the
American Academy of Physician Assistants, American Association of Nurse
Practitioners, and American College of Occupational and Environmental
Medicine (ACOEM); and three trucking industry associations including
the Owner-Operator Independent Drivers Association, Inc. (OOIDA),
National School Transportation Association, and the American Trucking
Associations (ATA).
Five commenters expressed overall support for the proposed rule and
four commenters expressed opposition to the rule. Many commenters
expressed neither support nor opposition to the rule in its entirely;
instead, they offered recommendations or voiced concerns.
Most commenters opposed the proposal that a qualified VA physician
must be either a doctor of medicine or doctor of osteopathy currently
employed in the VA. Other commenters found the rule unnecessary or
stated that it creates a duplicative process. Additionally, commenters
said that by developing an alternative process for qualified physicians
employed in the VA to be listed on the National Registry, FMCSA was
creating an exception to the National Registry process of certifying
MEs. Another issue commenters highlighted was the burden that would be
placed on the VA by conducting these medical examinations. Commenters
also had questions and concerns regarding the training and testing of
qualified VA physicians. One commenter disagreed with the estimated
savings associated with the alternative process for being listed on the
National Registry. Finally, several commenters raised concerns that are
outside the scope of this rulemaking.

Qualified VA Physicians--Doctors of Medicine or Doctors of Osteopathy

Comments: Many commenters objected to the provisions of the
proposed rule that a qualified VA physician must be either a doctor of
medicine or a doctor of osteopathy. Most of these commenters requested
that a doctor of chiropractic employed in the VA be considered a
qualified VA physician so they could use the proposed process and
become a certified VA ME. Some commenters requested

[[Page 26850]]

that all categories of medical professionals currently eligible to be
listed on the National Registry be allowed to participate in the
proposed process if they are employed in the VA.
Several commenters stated that the proposed process is
discriminatory, and a waste of resources and obvious experience of
medical professionals who are not included in the alternative process,
which will lead to increased costs for veterans and a shortage of
medical professionals available to perform the medical examinations in
the VA. Many commenters pointed out that chiropractors, nurse
practitioners, and physician assistants are already allowed on the
National Registry and urged that they should not be excluded from this
rule.
The NYSCA recognized that the language of the FAST Act ``tied'' the
Agency's ``hands statutorily.'' Furthermore, the NYSCA stated it is up
to Congress ``to change the relevant law underpinning the regulatory
proposal.'' In contrast, other commenters stated that the statute does
not limit the process to doctors of medicine or osteopathy, and that
the proposal has gratuitously added such a limitation. Given that
Congress did not limit the term ``physician'' to medical and
osteopathic doctors, the commenters asserted that it is consistent with
the statute to include chiropractors as ``physicians'' under the
proposed rule and is likely more representative of Congress's intent.
OOIDA questioned whether limiting the definition of physician to only
doctors of medicine and osteopathy, and not applying the criteria set
forth in 49 CFR 390.103, is too restrictive to match the Congressional
intent. Within their comment, they provided a hyperlink to a letter by
three members of Congress to the Administrator of FMCSA, which stated
that regulatory barriers that make it needlessly difficult for veterans
to secure jobs in the trucking industry should be eliminated. Other
commenters contended that the term ``qualified physician'' was intended
to be the same as the categories included in 49 CFR 390.103, subject
only to the provisions of section 5403(d)(2) of the FAST Act.
Two commenters urged that chiropractors should be included in the
definition of ``physician'' because the Federal government already
includes chiropractors as physicians in the Medicare program or in
regulations issued by the Department of Labor's Office of Workers'
Compensation Programs.
Several commenters stated that the scope of practice and
classification of chiropractors varies by State. For example, one
commenter reported that 46 States allow chiropractors to perform
medical examinations. Several commenters noted that many States include
chiropractors in their definition of ``physician.'' In Illinois,
chiropractors are licensed under the same Medical Practice Act as
medical and osteopathic physicians and considered full physicians with
the right to perform medical examinations. In West Virginia,
chiropractors are also recognized as physicians who may perform medical
examinations. In Iowa, chiropractors are considered ``primary care
providers.'' One commenter stated that the Joint Commission, which
accredits and certifies healthcare organizations, recently changed its
stance on chiropractors and now recognizes them as physicians. Three
commenters contended that the proposed rule would inappropriately
invade or conflict with the authority of State legislatures and
licensing boards to determine what is within a doctor of chiropractic's
scope of practice. The NYSCA acknowledged that, while chiropractors are
licensed as physicians in many jurisdictions of the United States, they
are recognized as ``limited license physicians.''
FMCSA Response: This final rule recognizes and incorporates the
amendments made to section 5403(d)(2) of the FAST Act by the Jobs for
Our Heroes Act. As such, in addition to doctors of medicine and
osteopathy as proposed in the NRPM, advanced practice nurses, doctors
of chiropractic, physician assistants, and other medical professionals
employed in the VA are eligible to use the alternative process for
becoming certified and listed on the National Registry, provided they
are licensed, certified, or registered in a State to perform physical
examinations.
Subsequent to the publication of the NPRM, Congress enacted the
Jobs for Our Heroes Act on January 8, 2018. The Act amends section
5403(d)(2) of the FAST Act by replacing the term ``qualified
physician'' with ``qualified examiner.'' The Act now defines
``qualified examiner'' to mean, in relevant part, an individual who:
(A) Is employed in the VA as an advanced practice nurse, doctor of
chiropractic, doctor of medicine, doctor of osteopathy, physician
assistant, or other medical professional; and (B) is licensed,
certified, or registered in a State to perform physical examinations.
As such, the categories of VA medical professionals who are eligible to
use the alternative process are identical to the categories of medical
professionals set forth in 49 CFR 390.103 who are eligible to perform
medical examinations.
In view of the numerous comments directed to the proposed rule
limiting participation in the alternative process for being listed on
the National Registry to physicians, it was clear that this was a
matter under consideration by FMCSA. Now that the Congressional action
amending section 5403 has directly addressed the issue as well, the
Agency can adopt a final rule that is a logical outgrowth of the NPRM
by responding to the comments and incorporating the statutory
amendments without the need for additional public comment.

Duplicative Rule

Comments: Several commenters stated that the proposed rule was
duplicative and unnecessary. Some stated that there is already a system
in place for qualified physicians to become certified and listed on the
National Registry. There is no need to create a regulation that will
set up and maintain a separate training and testing program outside the
already functioning and capable FMCSA program.
FMCSA Response: As stated in the NPRM, these changes to the FMCSRs
are in response to the FAST Act requirement set forth in section
5403(c), as amended, that FMCSA ``develop a process for qualified
examiners to perform a medical examination and provide a medical
certificate under subsection (a) and include such examiners on the
national registry of medical examiners established under section
31149(d) of title 49, United States Code'' (49 U.S.C 31149 note). FMCSA
believes that the process as established in this final rule meets the
requirement of the FAST Act.

Creating an Exception to the National Registry Certification Process

Comments: Several commenters stated that the proposed rule would
create an exception to the National Registry process for becoming a
certified ME and subvert the purpose of the National Registry by
creating an exempted class. One commenter noted that allowing any
government organization to perform medical examinations of veteran
operators has the appearance of being self-serving and going around the
system, rather than through its many safeguards and qualifications.
Most commenters on this subject agreed that providers who work for the
VA should be treated the same as all other providers and should be held
to the same standards by following the same procedures for becoming
certified and listed on the National Registry. Additionally, ATA asked
if VA-certified MEs would also be subject

[[Page 26851]]

to periodic training and testing requirements; as they did not feel the
proposal addressed this critical issue.
FMCSA Response: FMCSA does not believe that this alternative
process is creating an exempted class or undermining the existing
system. This final rule provides an option that allows qualified VA
examiners to be listed on the Agency's National Registry so that
veterans enrolled in the VA healthcare system will have the convenience
of obtaining medical examinations where they receive their healthcare.
As stated elsewhere in this final rule, the training and testing the
qualified VA examiners must complete is comparable to what other
medical professionals must complete to be listed on the National
Registry. Finally, to address ATA's concerns, once a qualified VA
examiner is certified and listed on the National Registry, he or she
will be subject to the same requirements for periodic training every 5
years and for testing every 10 years. Certified VA MEs' performance
will be subject to the same FMCSA review and compliance as other MEs.

Burden on the VA

Comments: Several commenters believed that this rule will further
burden the overtaxed VA clinics and hospitals. They stated that the VA
budget is already stretched, and that the work it will take to
implement this rule is a waste of taxpayer's money. One commenter
stated this rule will be detrimental to the VA healthcare system; it
will be a significant expense to the VA, but only offer a modest
savings to veterans. Some commenters stated that they do not believe
the VA should be taking over the civilian community businesses that
have developed over the last 20 years. Another commenter stated that
local small businesses will lose clients.
FMCSA Response: The FAST Act directs FMCSA to work with the VA to
develop a process that will allow veterans enrolled in the VA
healthcare system to receive medical examinations in the VA. Therefore,
FMCSA and the VA must develop such a process.
The statute specifically adopts the definition of veteran set forth
in 38 U.S.C. 101 and the priority of enrollment in the VA healthcare
system established under 38 U.S.C. 1705(a). As such, the statute does
not increase the number of veterans who are eligible to obtain
healthcare from the VA. The medical benefits package available to
qualifying veterans already includes the completion of forms and
periodic medical examinations. See 38 CFR 17.38(a)(1)(xv) and
(a)(2)(i). Therefore, a new veteran benefit is not created.
FMCSA does not see this rule as a burden on the VA clinics and
hospitals. Qualified VA examiners are not being forced to use this
process or to become certified and listed on the National Registry.
This rule is being implemented to make it more convenient for qualified
VA examiners to become certified and, therefore, to provide veterans
with increased access to certified MEs.
FMCSA, in consultation with the VA, estimates that VA's only costs
will be interface development of $129,000 in the first year. FMCSA will
incur all other costs. Total savings to veterans will depend on how
many qualified VA examiners take advantage of this process and become
certified and listed on the National Registry and how many medical
examinations they perform.
The Agency notes, based on its consultation with the VA, that not
all veterans are eligible to receive healthcare from the VA. Moreover,
the rule does not require veterans who are eligible to receive
healthcare from the VA to obtain their medical examinations from the
VA. The rule also does not prohibit non-VA MEs from providing medical
examinations for veterans.
Comments: One commenter stated that the VA will have to increase
spending and revise its IT systems to interface with the States to
transmit data regarding qualified VA test results. He further stated
that the potential IT issues arising from this data transmission are
huge because of government computer system firewalls. Another commenter
believed that the VA's resources would be better allocated toward
medical treatment for our nation's veterans.
FMCSA Response: There is no provision in this rule that will
require the VA to revise its IT system to interface with the States to
transmit the data. Certified VA MEs will submit driver examination
results to FMCSA through their individual password-protected National
Registry accounts, just like any other certified ME. See 49 CFR
391.43(g). The transmission of the MEC information will be between the
National Registry and the States, not the certified ME and the States.
Comments: The comments included a statement that FMCSA is forcing
the VA's most valuable healthcare providers, the physicians and
osteopaths, to become certified MEs. A commenter believed that when a
veteran needs necessary medical treatment, the medical doctor will be
too busy performing medical examinations.
FMCSA Response: FMCSA notes that this final rule does not require
any VA medical professional to become a certified ME or to conduct
medical examinations. Those VA physicians who meet the qualifications
are eligible, but not required, to become certified and listed on the
National Registry. Moreover, the amendments made by the Jobs for Our
Heroes Act expand eligibility to use the alternative process to advance
practice nurses, doctors of chiropractic, and physician assistants,
which allows the VA, if it wishes, to provide medical examinations in a
manner that is most efficient and consistent with its healthcare
delivery model.
Additionally, as stated elsewhere in this final rule, section
5403(c) of the FAST Act, as amended, requires FMCSA to ``develop a
process for qualified examiners to perform a medical examination and
provide a medical certificate under subsection (a) and include such
examiners on the national registry of medical examiners established
under section 31149(d) of title 49, United States Code'' (49 U.S.C.
31149 note). This rule does not change the existing requirements or
process for becoming certified and listed on the National Registry and
does not prevent those certified MEs currently listed on the National
Registry from providing services to veterans.
Comments: The comments expressed concern regarding the oversight of
VA physicians. It was stated that, presumably, the only people with
access to VA physicians are veterans who are registered with the VA and
are seeking medical certification. Because most DOT Office of Inspector
General (OIG) agents are not veterans, FMCSA will have a significant
challenge getting its OIG agents into VA facilities to conduct
investigations. It was also stated that it is unreasonable to believe
that the quality of care at VA clinics and hospitals will not be
adversely affected, and safety concerns will not be overlooked.
FMCSA Response: FMCSA would work collaboratively with the OIG to
ensure access when necessary. With respect to oversight of the
certified VA MEs, FMCSA monitors and audits certified MEs listed on the
National Registry, which will include certified VA MEs, and may request
access to all medical examination records when there is a need to
review such documents.

Training

Comments: Several commenters believed that the Agency proposed
different training requirements for qualified VA physicians.
ACOEM stated that the core content of any training should include
at least the minimum requirements specified in the core curriculum
announced in the April

[[Page 26852]]

2012 final rule. It stated that the training should also make certain
potential examiners aware of other sources of information, such as
information developed by the Medical Review Board and the Motor Carrier
Safety Advisory Committee, as well as medical literature, which could
be consulted when no official guidance is available from FMCSA. ACOEM
believed it would be a disservice to both the military veterans and the
motoring public if the certified VA MEs are less aware of the
regulations, guidelines, and current literature, as well as the roles,
responsibilities, and risks of operating CMVs than MEs trained under
the existing process. Commenters said many VA physicians have never
performed medical examinations for CMV drivers, and those who have
performed such medical examinations did a poor job.
One commenter stated that different training requirements give the
appearance of impropriety. The commenter continued to explain that with
all the training options available, VA physicians should be able to
choose their training from the same training options available to all
others seeking National Registry certification.
Some commenters suggested that VA physicians would be better served
by attending live training. Another commenter stated that ``to allow
the VA to self train or train over the internet would diminish the
quality of care provided,'' and that to expand its authority without
requiring the same training for qualified VA physicians is dangerous
and poorly conceived.
FMCSA Response: We stated in the NPRM that FMCSA will be providing
the VA with an interactive, web-based training course and will 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. To clarify, these four modules will be based on the
same core curriculum specifications published with the April 2012 final
rule. The training will focus on the standards for physical
qualifications and the physical requirements for an operator of a CMV,
as required by section 5403(d)(2)(B) of the FAST Act. Therefore, all
certified MEs will receive comparable training. While the specific
training content and delivery method are not prescribed by FMCSA, and
no two training organizations offer the identical training, qualified
VA examiners will not receive training that minimizes the substantive
content of the program.
With respect to the commenter who stated that training options
available to VA physicians would be limited, qualified VA examiners may
choose or utilize either of the training options outlined in part 390
subpart D. FMCSA has added language in the final rule to explain this
choice. It was not the intent of FMCSA to limit the choices of a
qualified VA examiner; it was to provide an alternative, comparable
training option.
FMCSA disagrees that qualified VA examiners would be better served
by attending live training. Under the existing National Registry
process, medical professionals may take the training exclusively
online. FMCSA does not believe that it should impose a burden on
qualified VA examiners that is not imposed on other prospective MEs.
Moreover, the assumption that the web-based VA process will diminish
the quality of medical examinations or that it is a poorly conceived
concept is misguided. As discussed above, FMCSA will be overseeing the
development of the training and will ensure that it is comparable to
training received through private training organizations.
FMCSA also disagrees that allowing ``the VA to self train'' and
that different training requirements for the qualified VA examiners
give the appearance of impropriety. As discussed above, the training
requirements for qualified VA examiners are comparable to the existing
training requirements. In addition, under the existing regulations, any
hospital system, occupational health consortium, or professional
association that meets the requirements of Sec. 390.105 is allowed to
develop its own training program and to administer it to its employees
or members in a comparable manner. Moreover, the FAST Act directs FMCSA
to establish a process for qualified VA examiners to be listed on the
Agency's National Registry. For all the reasons discussed above, FMCSA
believes that the web-based training is a reasonable and efficient
means of satisfying that directive.

Testing

Comments: A number of commenters believed that the Agency proposed
different testing requirements for qualified VA physicians. Many
commenters were concerned that the test for qualified VA physicians
would be different than the test other examinees take. The commenters
stated it is only fair that all examinees be treated exactly the same
and take the same test. Some commenters objected to online testing. One
commenter noted that the existing proctored system of testing was
developed to ensure security of the process and should not be different
for qualified VA physicians. In contrast, other commenters urged that
online testing be available to all examinees.
OOIDA commented that testing should ``remain on par with the
private sector and accessible so as to not frustrate the purpose of
Section 5403.'' It also suggested that metrics be established to
evaluate whether the developed process fulfills the Congressional
intent.
FMCSA Response: The qualified VA examiners will take a
certification test drawn from the same question bank FMCSA develops and
provides to private testing organizations; therefore, all examinees
will be treated the same with respect to the certification test taken.
The passing grade will be the same for all MEs.
FMCSA notes that the existing regulations allow testing
organizations to provide remote, computer-based testing for examinees
(see 49 CFR 390.107(b)); therefore, the web-based testing for qualified
VA examiners is contemplated by the existing regulations. FMCSA
acknowledges, however, that none of the private testing organizations
currently offer computer-based testing.
Because all Federal departments and agencies, including both FMCSA
and the VA, are required to ensure compliance with the Federal
Information System Management Act, National Institute of Standards and
Technology, Office of Management and Budget (OMB), and all applicable
laws, directives, policies, and directed actions on a continuing basis
to maintain the security and privacy of all Federal information systems
and the data contained in those systems, the security of the test will
be as secure as the testing administered in a proctored environment by
a private testing organization. In addition, FMCSA and the VA will be
directly overseeing the security process to control access, and to
confirm the identity of the person taking the examination and his or
her eligibility to take the examination.
OOIDA's comment regarding an evaluation of this new process is
beyond the scope of this rulemaking. However, FMCSA already has a
method of evaluating all medical professionals listed on the National
Registry, as described in the final rule published on April 20, 2012
(77 FR 20124). A similar review process will also apply to certified VA
MEs.

[[Page 26853]]

Costs

Comments: ACOEM stated that one of the concerns of the FAST Act was
a lack of access by veterans to certified MEs, which ACOEM stated was
based on an assumption that time and travel costs prevent VA physicians
from being trained under the National Registry requirements. ACOEM
stated that it disagreed with the estimated savings associated with an
alternative process, as noted in the NPRM. It stated that, because many
training programs are offered partially or entirely online, travel
costs (or time away from work) are virtually eliminated. It believed
that the relative cost of subsidizing qualified VA physicians to
complete a distance learning training program, as compared to FMCSA
developing and maintaining a training program (including periodic
updates as new guidance, regulations, or other information becomes
available), would most likely be comparable.
FMCSA Response: FMCSA disagrees with ACOEM's comment. While online
training programs are available, no data are available regarding the
degree to which VA MEs who are currently listed on the National
Registry (or who would obtain training toward that end in the baseline)
received online versus classroom training. ACOEM provides no data on
which FMCSA should revise the 50/50 split in the baseline between
online and classroom training. The ``50/50 split'' here refers to the
estimate in both the 2011 regulatory evaluation of the National
Registry final rule and again in the NPRM and this final rule that 50
percent of healthcare professionals seeking to become certified MEs
would complete the required training and testing online, while the
remaining 50 percent would participate in classroom-based training. The
50/50 split was utilized to be consistent with the Agency's projections
in the December 2011 regulatory evaluation of the National Registry
final rule. The regulatory evaluation for today's final rule estimates
average savings--specific to training, not testing--of 1.5 hours of
travel time (valued at $153) and 35 miles of mileage expenses (valued
at $20.13) per participating qualified VA examiner, or $173.13 in
total. The remainder of the $519 average savings per participating
qualified VA examiner consists of savings from the elimination of
travel time and mileage expenses resulting from the online testing
component of this final rule, as online testing, although permitted, is
not being offered, and therefore is not included in the baseline. In
the absence of credible studies or surveys that might suggest
otherwise, the Agency maintains that the use of the 50/50 split and the
consequent $173.13 savings estimate for training are reasonable.
FMCSA makes no claim that the relative cost of an FMCSA-developed
online training program is less than the relative cost of subsidizing
qualified VA examiners to complete distance learning training programs.
While the cost to society for a qualified VA examiner to complete
online training through a third party versus through FMCSA may be
comparable, the FAST Act directs FMCSA to develop and implement a
process. FMCSA believes that the process as established in this final
rule is the most convenient option for qualified VA examiners.

Outside the Scope of This Rulemaking

A number of respondents submitted comments suggesting adjustments
to the proposed rule that are not consistent with section 5403(d)(2) of
the FAST Act as amended. As such, they are outside the scope of this
rulemaking; therefore, a response is not required. For example, one
commenter asked whether, as a certified ME on the National Registry, he
could apply to the VA to perform examinations for veterans. Another
commenter suggested that a better option than the proposed rule may be
to contract with preferred private certified MEs at a discounted rate,
potentially providing more robust coverage and lower total program
costs. One commenter stated that this rule should include those who use
the VA healthcare system who are not veterans, such as spouses of
veterans. Finally, a commenter suggested that existing MEs offer a
reduced fee to do medical examinations for veterans.

VIII. Explanation of Changes From the NPRM

Most significantly, the final rule incorporates the amendments made
to section 5403(d)(2) of the FAST Act by the Jobs for Our Heroes Act.
As such, the final rule reflects that, in addition to doctors of
medicine and osteopathy as proposed in the NRPM, advanced practice
nurses, doctors of chiropractic, physician assistants, and other
medical professionals employed in the VA are eligible to use the
alternative process for becoming certified and listed on the National
Registry, provided they are licensed, certified, or registered in a
State to perform physical examinations. Otherwise, the final rule makes
minimal changes to the proposed regulatory text. Most are minor
editorial changes to improve clarity.
As discussed above, many commenters thought the proposed rule
applied to the existing process to become certified and listed on the
National Registry. Considering these comments, FMCSA has determined
that greater clarity will result if the alternative process for
qualified VA examiners is set out in a stand-alone group of rules in
subpart D. As such, the final rule sets forth new Sec. Sec. 390.123
through 390.135 that implement the alternative process for qualified VA
examiners. While the organization of the regulatory text in the final
rule differs from the NPRM, only a few clarifying or conforming changes
were made to the substance of the alternative process for qualified VA
examiners. A new Sec. 390.101(b) is added in the final rule. It
explains that a qualified VA examiner may be listed on the National
Registry by satisfying the requirements for medical examiner
certification set forth in either Sec. 390.103 or Sec. 390.123.
Another change from the NPRM focuses on the process or actions a
certified VA ME must take when he or she is no longer employed by the
VA. Upon review, the Agency noted that the proposed regulatory text was
unclear and inconsistent with FMCSA's intent. The final rule makes
clarifying changes in Sec. 390.131 to specify that a certified VA ME
must inform FMCSA through his or her National Registry account of any
changes in registration information, including that the certified VA ME
is no longer employed in the VA, within 30 days of the change. FMCSA
also adds a new paragraph (c) to clarify the requirements if a
previously certified VA ME would like to remain listed on the National
Registry.
The definitions in Sec. 390.5, other than the definition of
``veteran operator,'' are changed to incorporate the amendments made by
the Jobs for Our Heroes Act. FMCSA adds identical definitions to Sec.
390.5T, a temporary regulation. In January 2017, FMCSA suspended
certain regulations relating to a new electronic Unified Registration
System. The suspended regulations were replaced by temporary provisions
that contain the requirements in place on January 13, 2017 (Unified
Registration System; Suspension of Effectiveness, 82 FR 5292, 5311,
Jan. 17, 2017). Section 390.5 is one of the suspended sections. As the
temporary provisions of Sec. 390.5T are in effect, it is necessary to
add the definitions to that section as well.
The final rule makes conforming changes to the existing regulations
to reflect that new sections have been added to subpart D. In
particular, ``this subpart'' is changed in the existing regulatory text
to ``Sec. Sec. 390.103 through 390.115'' in each place that it
appears.

[[Page 26854]]

IX. Section-by-Section Analysis

The final rule makes the following changes to the NPRM:

Part 390

Section 390.5 Definitions
In the definition of a certified VA medical examiner, ``physician''
is changed to ``examiner''. ``Qualified VA physician'' is changed to
``Qualified VA medical examiner''. The phrase ``a doctor of medicine or
a doctor of osteopathy'' is replaced in the definition by ``an advanced
practice nurse, doctor of chiropractic, doctor of medicine, doctor of
osteopathy, physician assistant, or other medical professional''. The
clause ``is licensed, certified, or registered in a State to perform
physical examinations;'' is inserted as the second clause. The
definition of veteran operator remains as proposed. The definitions are
added to this temporarily suspended section.
Section 390.5T Definitions
The definitions, as revised, for Sec. 390.5 are added to this
temporary section.
Section 390.101 Scope
The final rule designates the existing paragraph as paragraph (a)
and adds a new paragraph (b) identifying the provisions for the
alternative processes for qualified VA examiners to be certified and
listed on the National Registry.
Section 390.103 Eligibility Requirements for Medical Examiner
Certification
In the final rule, FMCSA inserts a center heading prior to the
section. Proposed paragraph (a)(1)(ii) is redesignated as paragraph
(a)(2) and several clarifying changes have been made to that paragraph.
``Before taking the training provided below'' is moved to the end of
the clause, and ``provided below'' is changed to ``that meets the
requirements of Sec. 390.105''. ``System'' is changed to ``website''.
``Unique identifier'' is deleted and ``National Registry number'' is
inserted. Other than the redesignation of paragraphs and these minor
formatting and editorial revisions, the section remains as proposed.
Section 390.105 Medical Examiner Training Programs
The final rule moves proposed paragraph (c) to new Sec. 390.125
and otherwise leaves Sec. 390.105 unchanged.
Section 390.107 Medical Examiner Certification Testing
The final rule moves proposed paragraph (e) to new Sec. 390.127
and otherwise leaves Sec. 390.107 unchanged.
Section 390.109 Issuance of the FMCSA Medical Examiner Certification
Credential
FMCSA makes a conforming change to this section by deleting ``with
a unique National Registry Number''.
Section 390.111 Requirements for Continued Listing on the National
Registry of Certified Medical Examiners
The final rule moves proposed paragraphs (a)(2)(ii), (a)(3)(ii),
and (a)(4)(ii) to new Sec. 390.131. The section otherwise remains as
proposed.
Section 390.113 Reasons for Removal From the National Registry of
Certified Medical Examiners
The final rule removes the phrase ``this subpart'' from the
introductory paragraph and paragraph (e) of this section, and adds in
its place ``Sec. Sec. 390.103 through 390.115''.
Section 390.115 Procedures for Removal From the National Registry of
Certified Medical Examiners
The final rule moves proposed paragraphs (d)(2)(v) and (f)(4)(ii)
to new Sec. 390.135. The section otherwise remains as proposed.
Section 390.123 Medical Examiner Certification for Qualified Department
of Veterans Affairs Examiners
The final rule inserts a center heading before the section and adds
a new section setting out the eligibility requirements for qualified VA
examiners. FMCSA made changes in this section corresponding to the
registration changes made in Sec. 390.103.
Section 390.125 Qualified VA Examiner Certification Training
The final rule adds a new section setting out the alternative
training for qualified VA examiners.
Section 390.127 Qualified VA Examiner Certification Testing
The final rule adds a new section setting out the alternative
testing for qualified VA examiners.
Section 390.129 Issuance of the FMCSA Medical Examiner Certification
Credential
The final rule adds a new section that is analogous to Sec.
390.109 and includes the conforming change deleting ``with a unique
National Registry Number''.
Section 390.131 Requirements for Continued Listing of a Certified VA
Medical Examiner on the National Registry of Certified Medical
Examiners
The final rule adds a new section that is analogous to Sec.
390.111 for certified VA medical examiners. FMCSA clarifies in
paragraph (a)(2) that it applies to certified VA MEs and adds paragraph
(c) to provide the requirements for a previously certified VA ME to
remain listed on the National Registry.
Section 390.133 Reasons for Removal of a Certified VA Medical Examiner
From the National Registry of Certified Medical Examiners
The final rule adds a new section that is analogous to Sec.
390.113 for certified VA medical examiners.
Section 390.135 Procedure for Removal of a Certified VA Medical
Examiner From the National Registry of Certified Medical Examiners
The final rule adds a new section that is analogous to Sec.
390.115 for certified VA medical examiners. FMCSA clarifies that
paragraphs (d)(2)(ii) and (f)(2) apply to certified VA MEs. Other than
the redesignation of paragraphs and minor clarifying references, the
section remains as proposed in Sec. 390.115.

Part 391

Section 391.43 Medical Examination; Certificate of Physical Examination
This section remains as proposed.

X. Regulatory Analyses

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures

FMCSA determined that this final rule is not a significant
regulatory action under section 3(f) of E.O. 12866 (58 FR 51735, Oct.
4, 1993), Regulatory Planning and Review, as supplemented by E.O. 13563
(76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory
Review, and does not require an assessment of potential costs and
benefits under section 6(a)(3) of that Order. Accordingly, OMB has not
reviewed it under that Order. 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, Feb. 26, 1979).
The Agency, however, has considered the total costs and benefits of
this final rule and determined they are less than $100 million
annually.
The objective of the final rule is to develop an alternative
process to allow qualified VA examiners to perform

[[Page 26855]]

medical examinations for veteran operators and to list such examiners
on the National Registry. Absent this final rule, qualified VA
examiners may choose to become certified MEs listed on the National
Registry; however, the cost of doing so is greater than under the final
rule. As of May 31, 2017, there were 114 VA medical professionals
certified and listed on the National Registry under the existing
process, a small fraction of the 54,171 listed MEs.\3\
The standard requirements to become a certified ME are listed in
Sec. 390.103. The three requirements are that a person:
---------------------------------------------------------------------------

\3\ A total of 114 medical professionals employed in the VA were
listed on the National Registry as of May 31, 2017. Nationwide, a
total of 54,171 medical professionals were listed on the National
Registry as of May 31, 2017. See https://nationalregistry.fmcsa.dot.gov/NRPublicUI/home.seam (Accessed May
31, 2017).
---------------------------------------------------------------------------

Must be licensed, certified, or registered according to
State laws and regulations to perform medical examinations;
Must complete required training from a training
organization; and
Must pass the ME certification test at an FMCSA-approved
testing center.
The final rule modifies these requirements to make training and
testing readily accessible to qualified VA examiners. The Federal
government will incur the following costs for the modification of these
requirements: (1) Costs associated with the development of a web-based
training and testing module, (2) IT costs required to construct an
interface between the National Registry System and VA's web-based
training system, and (3) operation of the National Registry Help Desk
to assist qualified VA examiners with registration for, and completion
of, the web-based training and testing.
FMCSA will be developing the web-based curriculum. The training
will include a test at the end to ensure that qualified VA examiners
seeking to become certified VA MEs complete the curriculum and fully
understand the standards for, and physical requirements of, a CMV
operator. Curriculum development is a one-time cost incurred in the
first year and FMCSA, in consultation with the National Registry
developer, estimates this cost will be no more than $200,000. FMCSA
revised this estimate for the final rule to reflect the updated cost of
the curriculum development.
FMCSA will modify the National Registry System so it will be able
to accept qualified VA examiners' training and test results from the
VA's web-based training system and post results to each qualified VA
examiner's National Registry account. The VA and FMCSA are responsible
for developing the interface between their respective IT systems. The
interface will provide a seamless transfer of completed training and
testing information for each registered qualified VA examiner to be
listed on the National Registry. FMCSA, in consultation with the
National Registry developer and the VA, estimates these costs to be
$129,000 for each Agency, or a total of $258,000.
The National Registry Help Desk contractor will staff the National
Registry Help Desk to provide technical support to qualified VA
examiners going through the National Registry registration and
certification process and respond to telephone, written, and email
inquiries regarding National Registry certification from qualified VA
examiners, veterans, motor carriers, and other interested parties.
FMCSA, in consultation with the National Registry developer, estimates
that costs for the first year of the contract will be $46,200 and that
the costs will increase to $57,750 for each of years 2 through 10 of
the analysis period.
The curriculum development, interface development, and Help Desk
costs incurred by FMCSA over the 10-year analysis period are summarized
in Table 1. Total costs over the 10-year period are estimated at $1.0
million on an undiscounted basis and $880,000 at a 7 percent discount
rate. The annualized cost over the 10-year period is $117,000 at a 7
percent discount rate.

Table 1--Estimated Federal Government Costs
[In 2015$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
FMCSA and VA
Year Curriculum interface Help Desk Total Total (3% Total (7%
development development support (undiscounted) discount rate) discount rate)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2018.................................................... $200,000 $258,000 $46,200 $504,200 $504,200 $504,200
2019.................................................... 0 0 57,750 57,750 56,068 53,972
2020.................................................... 0 0 57,750 57,750 54,435 50,441
2021.................................................... 0 0 57,750 57,750 52,849 47,141
2022.................................................... 0 0 57,750 57,750 51,310 44,057
2023.................................................... 0 0 57,750 57,750 49,816 41,175
2024.................................................... 0 0 57,750 57,750 48,365 38,481
2025.................................................... 0 0 57,750 57,750 46,956 35,964
2026.................................................... 0 0 57,750 57,750 45,588 33,611
2027.................................................... 0 0 57,750 57,750 44,261 31,412
-----------------------------------------------------------------------------------------------
Total............................................... 200,000 258,000 565,950 1,023,950 953,848 880,455
-----------------------------------------------------------------------------------------------
Annualized...................................... .............. .............. .............. .............. 108,563 117,156
--------------------------------------------------------------------------------------------------------------------------------------------------------

FMCSA also analyzed the cost savings for qualified VA examiners
seeking to become certified VA MEs on the National Registry. These
qualified VA examiners would incur reduced tuition costs and travel
time and expenses as a result of this rule.
To estimate these cost savings, the Agency utilized estimated ME
tuition and travel costs from the December 2011 regulatory evaluation
of the National Registry final rule,\4\ and adjusted them to 2015
dollars.
---------------------------------------------------------------------------

\4\ The 2011 regulatory evaluation can be accessed at https://www.regulations.gov/document?D=FMCSA-2008-0363-0115 (Accessed April
3, 2017).
---------------------------------------------------------------------------

In the 2011 regulatory evaluation, the Agency estimated tuition
costs of $440, in 2008 dollars, for each healthcare professional. By
receiving the training via FMCSA's web-based curriculum, the qualified
VA examiner will no longer incur tuition costs. FMCSA estimated the
tuition cost savings by adjusting the $440 for inflation using the
Implicit Price Deflator for Gross Domestic

[[Page 26856]]

Product as published by the Bureau of Economic Analysis on March 30,
2017. FMCSA estimates tuition cost savings of $488 for each healthcare
professional ($488 = $440 x 1.108).\5\
---------------------------------------------------------------------------

\5\ U.S. Department of Commerce (DOC), Bureau of Economic
Analysis (BEA). ``National Income and Products Accounts (NIPA),
Section 1, Table 1.1.9: Implicit Price Deflators for Gross Domestic
Product.'' Published March 30, 2017. FMCSA adjusted the tuition cost
value using a multiplier of 1.108 (1.108 [ap] 109.998/99.246).
---------------------------------------------------------------------------

In the 2011 regulatory evaluation, the Agency estimated that 50
percent of healthcare professionals seeking to become certified MEs
would complete the required training and testing online, while the
remaining 50 percent would participate in classroom-based training. At
present, there are no testing providers offering online testing
(although online testing is permitted). Adjusting for a 50/50 online
versus classroom split for training and the current absence of online
testing, FMCSA estimates that in the baseline, a qualified VA examiner
seeking to become a certified VA ME would, on average, incur 4.5 hours
of travel costs and 105 miles of vehicle mileage expenses.\6\ Under the
final rule, training and testing for qualified VA examiners will be
online only, using the VA's web-based training system. This eliminates
the travel costs and the vehicle mileage costs that would otherwise be
incurred in the absence of the final rule. FMCSA quantifies the
qualified VA examiner's opportunity cost of travel time using a
representative wage rate for a qualified VA examiner. The Bureau of
Labor Statistics (BLS) Occupational Employment Statistics, May 2015,
data indicate the weighted average hourly wage rate for general
practitioners, internists, physicians and surgeons, chiropractors,
nurse practitioners, and physician assistants is $78.01.\7\ FMCSA
accounts for fringe benefits using data from the BLS Employer Costs for
Employee Compensation database. Applying the fringe benefit markup of
31 percent results in an hourly wage rate of $102.19, rounded to $102
for purposes of this analysis.\8\ At an average of 4.5 hours of travel
time saved per participating qualified VA examiner, the final rule
would provide a per-examiner travel time cost savings of $459 ($459 =
4.5 x $102, rounded to the nearest whole number).
---------------------------------------------------------------------------

\6\ 4.5 hours assumes 3 hours roundtrip travel for training
(incurred by 50 percent of qualified VA examiners) and 3 hours of
roundtrip travel for testing (for 100 percent of qualified VA
examiners). 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 percent of qualified VA examiners) and a 70-mile roundtrip
distance for testing (incurred by 100 percent of qualified VA
examiners). 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 https://www.bls.gov/news.release/archives/ocwage_03302016.pdf (Accessed May 24, 2017).
\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 qualified VA examiner
under the final 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-qualified VA examiner 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 April 3, 2017).
---------------------------------------------------------------------------

Each qualified VA examiner seeking to become a certified VA ME is
estimated to incur a one-time cost savings of $1,007. This estimate is
the sum of the projected savings of $488 in tuition costs, $459 in
travel time, and $60 in travel expenses. It is important to note that
the cost savings are limited to the elimination of tuition costs and
travel time and expenses associated with initial ME certification
training and testing requirements, and do not reflect subsequent
refresher training and recertification testing required for all
certified MEs.\10\
---------------------------------------------------------------------------

\10\ Both 49 CFR 390.111(a)(5)(i) and (ii) and new 49 CFR
390.131(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 every 10 years after the date of
issuance of their credential.
---------------------------------------------------------------------------

The total cost savings attributable to this final rule equals the
expected annual number of VA medical professionals who would use this
process to become certified multiplied by $1,007, discounted at a 7
percent discount rate.
FMCSA consulted with the VA regarding the expected annual number of
VA medical professionals who would use this process to become a
certified VA ME after the compliance date of this final rule. Because
participation in the National Registry is voluntary, the VA does not
have a direct estimate of this number, but expressed to FMCSA that it
is motivated to encourage its qualified VA examiners to become
certified VA MEs. It is, therefore, reasonable to assume an initial
``ramp-up'' period during the first 3 years following the compliance
date of the final rule.
The VA has identified about 157 hospitals and 1,800 clinics at
which it provides healthcare services. It anticipates that on
completion of the ramp-up period, there will be 10 certified VA MEs per
each of the 157 hospitals operated by the VA, and one certified VA ME
at each of the 300 largest clinics (the 1,500 smaller clinics may share
the services of certified VA MEs at VA hospitals). This results in a
total of 1,870 certified VA MEs across all VA facilities (1,870 = 10
MEs per hospital x 157 hospitals + 1 ME per clinic x 300 clinics).
As of May 31, 2017, there were 114 VA medical professionals on the
National Registry. To reach the projected level of 1,870 certified VA
MEs, the VA would need 585 qualified VA examiners to become certified
VA MEs in each of the first 3 years (585 = (1,870-114) / 3). Some of
these certified VA MEs will leave the VA due to attrition and job
transfers, and will need to be replaced by new certified VA MEs. FMCSA
estimates the turnover rate for certified VA MEs using data from the
Office of Personnel Management (OPM). OPM provides publicly available
data at the Agency level on the Federal Civilian Workforce through the
FedScope Data Cubes. FMCSA reviewed Veterans Health Administration
total employee counts \11\ and counts of employee separations \12\ for
the three relevant medical occupations (0602--Medical Officer, 0603--
Physician Assistant, and 0610--Nurse) and found that the turnover rate
for these occupations averaged 9 percent over the last 5 fiscal years.
---------------------------------------------------------------------------

\11\ U.S. Office of Personnel Management. FedScope Employment
Trend (Year-to-Year) Data Cube, Fiscal Year 2012 through Fiscal Year
2016. Available at: https://www.fedscope.opm.gov/ (Accessed August
10, 2017).
\12\ U.S. Office of Personnel Management. FedScope Separations
Trend (FY 2011-FY 2017) Data Cube, Fiscal Year 2012 through Fiscal
Year 2016. Available at: https://www.fedscope.opm.gov/ (Accessed
August 10, 2017).
---------------------------------------------------------------------------

The total number of qualified VA examiners becoming certified VA
MEs in years 1 through 3 of the analysis is the sum of the 585
certified VA MEs needed for the ramp-up period and the number that
replaces those who leave due to attrition or job transfer. FMCSA
estimates the number of certified VA MEs who leave the National
Registry by applying the 9 percent turnover rate to the total number of
certified VA MEs on the National Registry in the previous year.\13\ For
example, in year 1, the number of qualified VA examiners that become
certified VA MEs due to

[[Page 26857]]

attrition is equal to 10 (10 = 114 x 9%). In year 2, the number of
qualified VA examiners that become certified VA MEs due to attrition is
equal to 61 (61 = (114 + 585) x 9%).
---------------------------------------------------------------------------

\13\ Qualified VA Examiners Joining NRCME to Replace Attritiont=
Certified VA MEs Registered on the NRCMEt-1 x 9%.
---------------------------------------------------------------------------

As shown in the table below, this would result in an annualized
cost savings of approximately $345,000, which is greater than the
annualized cost of the rule estimated at approximately $117,000.
Therefore, this rule would result in an annualized net cost savings of
approximately $228,000.

Table 2--Potential Cost Savings and Net Cost Savings
--------------------------------------------------------------------------------------------------------------------------------------------------------
Potential number Cost savings per
of certified VA 1 qualified VA Total cost Total costs (7%
Year MEs who join the examiner (7% savings (7% discount rate) Net cost savings
national registry discount rate) discount rate)
A B C = A x B D E = -D + C
--------------------------------------------------------------------------------------------------------------------------------------------------------
2018..................................................... 595 ($941) ($559,783) $471,215 ($88,568)
2019..................................................... 646 (879) (568,004) 50,441 (517,563)
2020..................................................... 697 (822) (572,754) 47,141 (525,612)
2021..................................................... 163 (768) (125,181) 44,057 (81,124)
2022..................................................... 163 (718) (116,992) 41,175 (75,817)
2023..................................................... 163 (671) (109,338) 38,481 (70,857)
2024..................................................... 163 (627) (102,185) 35,964 (66,221)
2025..................................................... 163 (586) (95,500) 33,611 (61,889)
2026..................................................... 163 (548) (89,252) 31,412 (57,840)
2027..................................................... 163 (512) (83,413) 29,357 (54,056)
----------------------------------------------------------------------------------------------
Total................................................ 3,079 (7,070) (2,422,402) 822,855 (1,599,547)
----------------------------------------------------------------------------------------------
Annualized....................................... ................. (1,007) (344,896) 117,156 (227,740)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
(a) Total cost values may not equal the sum of the components due to rounding (the totals shown in this column are the rounded sum of unrounded
components).
(b) Values shown in parentheses are negative values (i.e., less than zero), and represent a decrease in cost or a cost savings.

The final rule may result in non-quantifiable cost savings to
veteran operators if it increases the availability of and access to
certified VA MEs. This may reduce waiting periods for appointments for
veteran operators enrolled in the VA healthcare system. Shorter waiting
periods may expedite a veteran operator's ability to begin driving for
personal income. This rule supports the distribution of benefits and
services offered to veterans enrolled in the VA healthcare system and
encourages veterans to live active and productive lives stemming from
gainful employment. Research supports that being gainfully employed
contributes to physical and mental health and well-being.\14\ Easing
access to employment and the associated wellness benefits to veterans
may decrease the aggregate demand for VA healthcare services. Also, the
potential addition of certified VA MEs on the National Registry 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. The Agency lacks
data on the number of veterans enrolled in the VA healthcare system
now, or in the future, who might realize cost savings from this
process. Therefore, FMCSA is unable to quantify cost savings that may
be incurred by veteran operators.
---------------------------------------------------------------------------

\14\ Waddell, Gordon and Burton, A Kim. 2006. Is Working Good
For Your Health and Well Being? Available at: http://iedereen-aandeslag.nl/wp-content/uploads/2016/07/hwwb-is-work-good-for-you.pdf (Accessed March 6, 2017).
---------------------------------------------------------------------------

B. E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs)

This final rule is considered an E.O. 13771 deregulatory
action.\15\ The present value of the cost savings of this rule,
measured on an infinite time horizon at a 7 percent discount rate, is
$2.1 million. Expressed on an annualized basis, the cost savings are
$147,000. These values are expressed in 2016 dollars.
---------------------------------------------------------------------------

\15\ Executive Office of the President. Executive Order 13771 of
January 30, 2017. Reducing Regulation and Controlling Regulatory
Costs. 82 FR 9339-9341. Feb. 3, 2017.
---------------------------------------------------------------------------

C. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (RFA) (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. 847, 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 populations of less than 50,000.\16\ 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.
---------------------------------------------------------------------------

\16\ Regulatory Flexibility Act, Public Law 96-354, 94 Stat.
1164 (codified at 5 U.S.C. 601, et seq.).
---------------------------------------------------------------------------

In accordance with section 603(a) of the RFA, FMCSA completed an
Initial Regulatory Flexibility Analysis to assess the impact of the
NPRM on small entities. Although FMCSA received numerous public
comments on the NPRM for this rule, there were no comments specific to
the Initial Regulatory Flexibility Analysis. The Chief Counsel for
Advocacy of the Small Business Administration did not file comments in
response to the proposed rule.
Section 604(a) of the RFA requires the Agency to prepare a Final
Regulatory Flexibility Analysis to assess the impact of the final rule
on small entities. However, section 605 of the RFA allows an agency to
certify a rule, in lieu of preparing an analysis, if the rulemaking is
not expected to have a significant economic impact on a substantial
number of small entities.
This rule will affect a subset of qualified VA examiners, the VA,
and

[[Page 26858]]

FMCSA. Neither qualified VA examiners, the VA, nor FMCSA are considered
small entities because they do not meet the definition of a small
entity in section 601 of the RFA. Specifically, qualified VA examiners
are considered neither a small business under section 601(3) of the
RFA, nor are they considered a small organization under section 601(4)
of the RFA. Neither the VA nor FMCSA are considered small governmental
jurisdictions under section 601(5) of the RFA.
This rule will result in one-time cost savings for qualified VA
examiners of approximately $1,000. The VA and FMCSA will incur combined
costs of approximately $117,000, annualized at a 7 percent discount
rate.
This rule will not affect small entities. Consequently, I hereby
certify that the action will not have a significant economic impact on
a substantial number of small entities.

D. 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 final rule so that they can better evaluate its
effects on themselves and participate in the rulemaking initiative. If
the final 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 final 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.

E. 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 1 year. Though this final rule will not
result in any such expenditure, the Agency discusses the effects of
this rule elsewhere in this preamble.

F. Paperwork Reduction Act

This final rule calls for no new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

G. E.O. 13132 (Federalism)

A rule has implications for federalism under section 1(a) of E.O.
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 has determined that this rule does 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.

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

This final 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.

I. 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 final 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.

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

FMCSA reviewed this final 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.

K. Privacy

The E-Government Act of 2002, Public Law 107-347, 208, 116 Stat.
2899, 2921, requires Federal agencies to conduct a privacy impact
assessment (PIA) for new or substantially changed technology that
collects, maintains, or disseminates information in an identifiable
form. Section 522 of title I of division H of the Consolidated
Appropriations Act, 2005, Public Law 108-447, 118 Stat. 2809, 3268, 5
U.S.C. 552a note, requires the Agency to conduct a PIA of a regulation
that will affect the privacy of individuals. FMCSA has evaluated the
risks and effects the rulemaking might have on collecting, storing, and
sharing personally identifiable information (PII) and has evaluated
protections and alternative information handling processes in
developing the final rule to mitigate potential privacy risks. This
rule will not require the collection of any new PII by the National
Registry 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 PII contemplated in the final rule.
The Agency submitted a Privacy Threshold Assessment (PTA) analyzing
the final rule and the specific process for collection of personal
information to the DOT Office of the Secretary's Privacy Office for
adjudication. Per the DOT Privacy Officer's adjudication of the PTA,
the process to add qualified VA examiners to the National Registry
creates a new privacy risk that must be managed appropriately. The
current National Registry of Certified Medical Examiners PIA published
on February 28, 2017, at https://www.transportation.gov/individuals/privacy/privacy-impact-assessments, will be reviewed and revised as
appropriate to reflect the final rule and will be published not later
than the date on which DOT initiates any of the collection activities
contemplated in the final rule. 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

[[Page 26859]]

in relation to the system addressed in the final rule.
The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
and any non-Federal agency that receives records contained in a system
of records from a Federal agency for use in a matching program. Per the
PTA adjudication from the DOT Privacy Officer, the qualified VA
examiners' registration records resulting from this rule are not unique
and will be maintained and managed by FMCSA in accordance with the
registration requirements identified in the planned update to the DOT/
FMCSA 009--National Registry of Certified Medical Examiners (National
Registry) System of Records Notice published in the Federal Register on
April 23, 2012 (77 FR 24247).
Per the Privacy Act, FMCSA and DOT are required to publish in the
Federal Register for at least 30 days a system of records notice (SORN)
before it is authorized to collect or use PII retrieved by unique
identifier. The current National Registry SORN will be reviewed and
revised as appropriate to reflect the final rule and will be published
concurrently with the final rule publication or not later than the date
on which FMCSA begins collecting and/or using records consistent with
the requirements of this rule. As the collected information will be
stored in an existing FMCSA system of records, an additional SORN for
this rule is not required.

L. E.O. 12372 (Intergovernmental Review)

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

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

FMCSA has analyzed this final 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.

N. E.O. 13783 (Promoting Energy Independence and Economic Growth)

E.O. 13783 directs executive departments and agencies to review
existing regulations that potentially burden the development or use of
domestically produced energy resources, and to appropriately suspend,
revise, or rescind those that unduly burden the development of domestic
energy resources. In accordance with E.O. 13783, DOT prepared and
submitted a report to the Director of OMB that provides specific
recommendations that, to the extent permitted by law, could alleviate
or eliminate aspects of agency action that burden domestic energy
production. This final rule has not been identified by DOT under E.O.
13783 as potentially alleviating unnecessary burdens on domestic energy
production.

O. 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.

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

The National Technology Transfer and Advancement Act (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 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.

Q. Environment (NEPA, CAA, Environmental Justice)

FMCSA analyzed this final rule for the purpose of the National
Environmental Policy Act (NEPA) 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, paragraph 6.d. The Categorical Exclusion (CE) in paragraph
6.d covers regulations concerning the training, qualifying, licensing,
certifying, and managing of personnel. The requirements in this rule
are covered by this CE and the action does not have any effect on the
quality of the environment. The CE determination is available for
review in the docket.
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 final rule in accordance with the E.O., and has
determined that no environmental justice issue is associated with this
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 amends 49 CFR chapter III,
parts 390 and 391, 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; secs. 212 and 217, Pub. L. 106-159, 113 Stat.
1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as added and
transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L.
109-59, 119 Stat. 1144, 1726, 1743; sec. 4136, Pub. L. 109-59, 119
Stat. 1144, 1745; secs. 32101(d) and 32934, Pub. L. 112-141, 126
Stat. 405, 778, 830; sec. 2, Pub. L. 113-125, 128 Stat. 1388; secs.
5403, 5518, and 5524, Pub. L. 114-94, 129 Stat. 1312,

[[Page 26860]]

1548, 1558, 1560; sec. 2, Pub. L. 115-105, 131 Stat. 2263; and 49
CFR 1.81, 1.81a, 1.87.

0
2. Amend Sec. 390.5 as follows:
0
a. Lift the suspension of the section;
0
b. Add definitions of ``Certified VA medical examiner'', ``Qualified VA
examiner'', and ``Veteran operator'' in alphabetical order; and
0
c. Suspend Sec. 390.5 indefinitely.
The additions read as follows:

Sec. 390.5 Definitions.

* * * * *
Certified VA medical examiner means a qualified VA examiner who has
fulfilled the requirements for and is listed on the National Registry
of Certified Medical Examiners.
* * * * *
Qualified VA examiner means an advanced practice nurse, doctor of
chiropractic, doctor of medicine, doctor of osteopathy, physician
assistant, or other medical professional who is employed in the
Department of Veterans Affairs; is licensed, certified, or registered
in a State to perform physical examinations; 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
38 U.S.C. 1705(a).

0
3. Amend Sec. 390.5T by adding the terms ``Certified VA medical
examiner'', ``Qualified VA examiner'', and ``Veteran operator'' in
alphabetical order to read as follows:

Sec. 390.5T Definitions.

0
4. Revise Sec. 390.101 to read as follows:

Sec. 390.101 Scope.

(a) The rules in this subpart establish the minimum qualifications
for FMCSA certification of a medical examiner and for listing the
examiner on FMCSA's National Registry of Certified Medical Examiners.
The National Registry of Certified Medical Examiners is designed to
improve highway safety and operator health by requiring that medical
examiners be trained and certified to determine effectively whether an
operator meets FMCSA physical qualification standards under part 391 of
this chapter. One component of the National Registry is the registry
itself, which is a national database of names and contact information
for medical examiners who are certified by FMCSA to perform medical
examinations of operators.
(b) A qualified VA examiner, as defined in either Sec. 390.5 or
Sec. 390.5T, may be listed on the National Registry of Certified
Medical Examiners by satisfying the requirements for medical examiner
certification set forth in either Sec. 390.103 or Sec. 390.123.

Medical Examiner Certification Requirements

0
5. Add an undesignated center heading before Sec. 390.103 to read as
set forth above.

0
6. Amend Sec. 390.103 by revising paragraph (a) to read as follows:

Sec. 390.103 Eligibility requirements for medical examiner
certification.

(a) To receive medical examiner certification from FMCSA, a person
must:
(1) Be licensed, certified, or registered in accordance with
applicable State laws and regulations to perform physical examinations.
The applicant must 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.
(2) Register on the National Registry website and receive a
National Registry number before taking the training that meets the
requirements of Sec. 390.105.
(3) Complete a training program that meets the requirements of
Sec. 390.105.
(4) 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 3 years after
completion of the training program required by paragraph (a)(3) of this
section.
* * * * *

Sec. 390.109 [Amended]

0
7. Amend Sec. 390.109 by removing the phrase ``with a unique National
Registry Number''.

0
8. Amend Sec. 390.111 by revising paragraphs (a)(1) and (2) and
(a)(5)(ii)(B) to read as follows:

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

(a) * * *
(1) Continue to meet the requirements of Sec. Sec. 390.103 through
390.115 and the applicable requirements of part 391 of this chapter.
(2) Report to FMCSA any changes in the registration information
submitted under Sec. 390.103(a)(2) within 30 days of the change.
* * * * *
(5) * * *
(ii) * * *
(B) Pass the test required by Sec. 390.103(a)(4).
* * * * *

Sec. 390.113 [Amended]

0
9. Amend Sec. 390.113 by removing the phrase ``this subpart'' from the
introductory text and paragraph (e) and adding in its place
``Sec. Sec. 390.103 through 390.115''.

0
10. Amend Sec. 390.115 as follows:
0
a. By removing in paragraphs (c)(1)(i) and (ii), (c)(2)(i), (d)(2)(i),
and (f)(1) the phrase ``this subpart'' and adding in its place the
phrase ``Sec. Sec. 390.103 through 390.115'' wherever it appears; and
0
b. By revising paragraphs (d)(2)(ii) and (f)(2).
The revisions read as follows:

Sec. 390.115 Procedures for removal from 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)(2) within 30 days of the
reinstatement.
* * * * *

[[Page 26861]]

(f) * * *
(2) Report to FMCSA any changes in the registration information
submitted under Sec. 390.103(a)(2).
* * * * *

0
11. Add an undesignated center heading and Sec. Sec. 390.123, 390.125,
390.127, 390.129, 390.131, 390.133, and 390.135 to subpart D to read as
follows:

Subpart D--National Registry of Certified Medical Examiners

* * * * *

Medical Examiner Certification Requirements for Qualified Department of
Veterans Affairs Examiners

Sec.
390.123 Medical examiner certification for qualified Department of
Veterans Affairs examiners.
390.125 Qualified VA examiner certification training.
390.127 Qualified VA examiner certification testing.
390.129 Issuance of the FMCSA medical examiner certification
credential.
390.131 Requirements for continued listing of a certified VA medical
examiner on the National Registry of Certified Medical Examiners.
390.133 Reasons for removal of a certified VA medical examiner from
the National Registry of Certified Medical Examiners.
390.135 Procedure for removal of a certified VA medical examiner
from the National Registry of Certified Medical Examiners.

Sec. 390.123 Medical examiner certification for qualified Department
of Veterans Affairs examiners.

(a) For a qualified VA examiner to receive medical examiner
certification from FMCSA under Sec. Sec. 390.123 through 390.135, a
person must:
(1) Be an advanced practice nurse, doctor of chiropractic, doctor
of medicine, doctor of osteopathy, physician assistant, or other
medical professional employed in the Department of Veterans Affairs;
(2) Be licensed, certified, or registered in a State to perform
physical examinations;
(3) Register on the National Registry website and receive a
National Registry number before taking the training that meets the
requirements of Sec. 390.125;
(4) Be familiar with FMCSA's standards for, and physical
requirements of, a commercial motor vehicle operator requiring medical
certification, by completing the training program that meets the
requirements of Sec. 390.125;
(5) Pass the medical examiner certification test provided by FMCSA,
administered in accordance with Sec. 390.127, and has had his or her
test information forwarded to FMCSA; and
(6) Never have been found to have acted fraudulently with respect
to any certification of a commercial motor vehicle operator, including
by fraudulently awarding a medical certificate.
(b) If a person becomes a certified VA medical examiner under
Sec. Sec. 390.123 through 390.135, then to renew such certification
the certified VA medical examiner must remain qualified under
paragraphs (a)(1) and (2) of this section and complete additional
testing and training as required by Sec. 390.131(a)(5).

Sec. 390.125 Qualified VA examiner certification training.

A qualified VA examiner applying for certification under Sec. Sec.
390.123 through 390.135 must complete training developed and provided
by FMCSA and delivered through a web-based training system operated by
the Department of Veterans Affairs.

Sec. 390.127 Qualified VA examiner certification testing.

To receive medical examiner certification from FMCSA under
Sec. Sec. 390.123 through 390.135, a qualified VA examiner must pass
the medical examiner certification test developed and provided by FMCSA
and administered through a web-based system operated by the Department
of Veterans Affairs.

Sec. 390.129 Issuance of the FMCSA medical examiner certification
credential.

Upon compliance with the requirements of Sec. 390.123(a) or (b),
FMCSA will issue to a qualified VA examiner or certified VA medical
examiner, as applicable, an FMCSA medical examiner certification
credential and will add the certified VA medical examiner's name to the
National Registry of Certified Medical Examiners. The certification
credential will expire 10 years after the date of its issuance.

Sec. 390.131 Requirements for continued listing of a certified VA
medical examiner on the National Registry of Certified Medical
Examiners.

(a) To continue to be listed on the National Registry of Certified
Medical Examiners, each certified VA medical examiner must:
(1) Continue to meet the requirements of Sec. Sec. 390.123 through
390.135 and the applicable requirements of part 391 of this chapter.
(2) Report to FMCSA any changes in the registration information
submitted under Sec. 390.123(a)(3) within 30 days of the change.
(3) Continue to be licensed, certified, or registered, and
authorized to perform physical examinations, in accordance with the
laws and regulations of a State.
(4) 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. 390.125. 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:
(i) No sooner than 4 years and no later than 5 years after the date
of issuance of the medical examiner certification credential, complete
periodic training as specified by FMCSA.
(ii) No sooner than 9 years and no later than 10 years after the
date of issuance of the medical examiner certification credential:
(A) Complete periodic training as specified by FMCSA; and
(B) Pass the test required by Sec. 390.123(a)(5).
(b) FMCSA will issue a new medical examiner certification
credential valid for 10 years to a certified VA medical examiner who
complies with paragraphs (a)(1) through (4) of this section and who
successfully completes the training and testing as required by
paragraphs (a)(5)(i) and (ii) of this section.
(c) A certified VA medical examiner must report to FMCSA within 30
days that he or she is no longer employed in the Department of Veterans
Affairs. Any certified VA medical examiner who is no longer employed in
the Department of Veterans Affairs, but would like to remain listed on
the National Registry, must, within 30 days of leaving employment in
the Department of Veterans Affairs, meet the requirements of Sec.
390.111. In particular, he or she must 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. The previously
certified VA medical examiner's medical license(s) must be verified and
accepted by FMCSA prior to conducting any physical examination of a
commercial motor vehicle operator or

[[Page 26862]]

issuing any medical examiner's certificates.

Sec. 390.133 Reasons for removal of a certified VA medical examiner
from the National Registry of Certified Medical Examiners.

FMCSA may remove a certified VA medical examiner from the National
Registry of Certified Medical Examiners when a certified VA medical
examiner fails to meet or maintain the qualifications established by
Sec. Sec. 390.123 through 390.135, the requirements of other
regulations applicable to the certified VA medical examiner, or
otherwise does not meet the requirements of 49 U.S.C. 31149. The
reasons for removal may include, but are not limited to:
(a) The certified VA medical examiner fails to comply with the
requirements for continued listing on the National Registry of
Certified Medical Examiners, as described in Sec. 390.131.
(b) FMCSA finds that there are errors, omissions, or other
indications of improper certification by the certified VA medical
examiner of an operator in either the completed Medical Examination
Reports or the medical examiner's certificates.
(c) The FMCSA determines the certified VA medical examiner issued a
medical examiner's certificate to an operator of a commercial motor
vehicle who failed to meet the applicable standards at the time of the
examination.
(d) The certified VA medical examiner fails to comply with the
examination requirements in Sec. 391.43 of this chapter.
(e) The certified VA medical examiner falsely claims to have
completed training in physical and medical examination standards as
required by Sec. Sec. 390.123 through 390.135.

Sec. 390.135 Procedure for removal of a certified VA medical examiner
from the National Registry of Certified Medical Examiners.

(a) Voluntary removal. To be voluntarily removed from the National
Registry of Certified Medical Examiners, a certified VA medical
examiner must submit a request to the FMCSA Director, Office of
Carrier, Driver and Vehicle Safety Standards, 1200 New Jersey Ave. SE,
Washington, DC 20590. Except as provided in paragraph (b) of this
section, the Director, Office of Carrier, Driver and Vehicle Safety
Standards will accept the request and the removal will become effective
immediately. On and after the date of issuance of a notice of proposed
removal from the National Registry of Certified Medical Examiners, as
described in paragraph (b) of this section, however, the Director,
Office of Carrier, Driver and Vehicle Safety Standards will not approve
the certified VA medical examiner's request for voluntary removal from
the National Registry of Certified Medical Examiners.
(b) Notice of proposed removal. Except as provided by paragraphs
(a) and (e) of this section, FMCSA initiates the process for removal of
a certified VA medical examiner from the National Registry of Certified
Medical Examiners by issuing a written notice of proposed removal to
the certified VA medical examiner, stating the reasons that removal is
proposed under Sec. 390.133 and any corrective actions necessary for
the certified VA medical examiner to remain listed on the National
Registry of Certified Medical Examiners.
(c) Response to notice of proposed removal and corrective action. A
certified VA medical examiner who has received a notice of proposed
removal from the National Registry of Certified Medical Examiners must
submit any written response to the Director, Office of Carrier, Driver
and Vehicle Safety Standards no later than 30 days after the date of
issuance of the notice of proposed removal. The response must indicate
either that the certified VA medical examiner believes FMCSA has relied
on erroneous reasons, in whole or in part, in proposing removal from
the National Registry of Certified Medical Examiners, as described in
paragraph (c)(1) of this section, or that the certified VA medical
examiner will comply and take any corrective action specified in the
notice of proposed removal, as described in paragraph (c)(2) of this
section.
(1) Opposing a notice of proposed removal. If the certified VA
medical examiner believes FMCSA has relied on an erroneous reason, in
whole or in part, in proposing removal from the National Registry of
Certified Medical Examiners, the certified VA medical examiner must
explain the basis for his or her belief that FMCSA relied on an
erroneous reason in proposing the removal. The Director, Office of
Carrier, Driver and Vehicle Safety Standards will review the
explanation.
(i) If the Director, Office of Carrier, Driver and Vehicle Safety
Standards finds FMCSA has wholly relied on an erroneous reason for
proposing removal from the National Registry of Certified Medical
Examiners, the Director, Office of Carrier, Driver and Vehicle Safety
Standards will withdraw the notice of proposed removal and notify the
certified VA medical examiner in writing of the determination. If the
Director, Office of Carrier, Driver and Vehicle Safety Standards finds
FMCSA has partly relied on an erroneous reason for proposing removal
from the National Registry of Certified Medical Examiners, the
Director, Office of Carrier, Driver and Vehicle Safety Standards will
modify the notice of proposed removal and notify the certified VA
medical examiner in writing of the determination. No later than 60 days
after the date the Director, Office of Carrier, Driver and Vehicle
Safety Standards modifies a notice of proposed removal, the certified
VA medical examiner must comply with Sec. Sec. 390.123 through 390.135
and correct any deficiencies identified in the modified notice of
proposed removal as described in paragraph (c)(2) of this section.
(ii) If the Director, Office of Carrier, Driver and Vehicle Safety
Standards finds FMCSA has not relied on an erroneous reason in
proposing removal, the Director, Office of Carrier, Driver and Vehicle
Safety Standards will affirm the notice of proposed removal and notify
the certified VA medical examiner in writing of the determination. No
later than 60 days after the date the Director, Office of Carrier,
Driver and Vehicle Safety Standards affirms the notice of proposed
removal, the certified VA medical examiner must comply with Sec. Sec.
390.123 through 390.135 and correct the deficiencies identified in the
notice of proposed removal as described in paragraph (c)(2) of this
section.
(iii) If the certified VA medical examiner does not submit a
written response within 30 days of the date of issuance of a notice of
proposed removal, the removal becomes effective and the certified VA
medical examiner is immediately removed from the National Registry of
Certified Medical Examiners.
(2) Compliance and corrective action. (i) The certified VA medical
examiner must comply with Sec. Sec. 390.123 through 390.135 and
complete the corrective actions specified in the notice of proposed
removal no later than 60 days after either the date of issuance of the
notice of proposed removal or the date the Director, Office of Carrier,
Driver and Vehicle Safety Standards affirms or modifies the notice of
proposed removal, whichever is later. The certified VA medical examiner
must provide documentation of compliance and completion of the
corrective actions to the Director, Office of Carrier, Driver and
Vehicle Safety Standards. The Director, Office of Carrier, Driver and
Vehicle Safety Standards may conduct any investigations and request any
documentation necessary to verify that the certified VA medical
examiner has complied with Sec. Sec. 390.123 through

[[Page 26863]]

390.135 and completed the required corrective action(s). The Director,
Office of Carrier, Driver and Vehicle Safety Standards will notify the
certified VA medical examiner in writing whether he or she has met the
requirements to continue to be listed on the National Registry of
Certified Medical Examiners.
(ii) If the certified VA medical examiner fails to complete the
proposed corrective action(s) within the 60-day period, the removal
becomes effective and the certified VA medical examiner is immediately
removed from the National Registry of Certified Medical Examiners. The
Director, Office of Carrier, Driver and Vehicle Safety Standards will
notify the person in writing that he or she has been removed from the
National Registry of Certified Medical Examiners.
(3) At any time before a notice of proposed removal from the
National Registry of Certified Medical Examiners becomes final, the
recipient of the notice of proposed removal and the Director, Office of
Carrier, Driver and Vehicle Safety Standards may resolve the matter by
mutual agreement.
(d) Request for administrative review. If a person has been removed
from the National Registry of Certified Medical Examiners under
paragraph (c)(1)(iii), (c)(2)(ii), or (e) of this section, that person
may request an administrative review no later than 30 days after the
date the removal becomes effective. The request must be submitted in
writing to the FMCSA Associate Administrator for Policy, 1200 New
Jersey Ave. SE, Washington, DC 20590. The request must explain the
error(s) committed in removing the certified VA medical examiner from
the National Registry of Certified Medical Examiners, and include a
list of all factual, legal, and procedural issues in dispute, and any
supporting information or documents.
(1) Additional procedures for administrative review. The Associate
Administrator may ask the person to submit additional data or attend a
conference to discuss the removal. If the person does not provide the
information requested, or does not attend the scheduled conference, the
Associate Administrator may dismiss the request for administrative
review.
(2) Decision on administrative review. The Associate Administrator
will complete the administrative review and notify the person in
writing of the decision. The decision constitutes final Agency action.
If the Associate Administrator decides the removal was not valid, FMCSA
will reinstate the person and reissue a certification credential to
expire on the expiration date of the certificate that was invalidated
under paragraph (g) of this section. The reinstated certified VA
medical examiner must:
(i) Continue to meet the requirements of Sec. Sec. 390.123 through
390.135 and the applicable requirements of part 391 of this chapter.
(ii) Report to FMCSA any changes in the registration information
submitted under Sec. 390.123(a)(3) within 30 days of the
reinstatement.
(iii) Be licensed, certified, or registered in accordance with
applicable State laws and regulations to perform physical examinations.
(iv) 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 Sec. Sec.
390.125 and 390.131 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.
(v) Complete periodic training as required by the Director, Office
of Carrier, Driver and Vehicle Safety Standards.
(e) Emergency removal. In cases of either willfulness or in which
public health, interest, or safety requires, the provisions of
paragraph (b) of this section are not applicable and the Director,
Office of Carrier, Driver and Vehicle Safety Standards may immediately
remove a certified VA medical examiner from the National Registry of
Certified Medical Examiners and invalidate the certification credential
issued under Sec. 390.129. A person who has been removed under the
provisions of this paragraph may request an administrative review of
that decision as described under paragraph (d) of this section.
(f) Reinstatement on the National Registry of Certified Medical
Examiners. No sooner than 30 days after the date of removal from the
National Registry of Certified Medical Examiners, a person who has been
voluntarily or involuntarily removed may apply to the Director, Office
of Carrier, Driver and Vehicle Safety Standards to be reinstated. The
person must:
(1) Continue to meet the requirements of Sec. Sec. 390.123 through
390.135 and the applicable requirements of part 391 of this chapter.
(2) Report to FMCSA any changes in the registration information
submitted under Sec. 390.123(a)(3).
(3) Be licensed, certified, or registered in accordance with
applicable State laws and regulations to perform physical examinations.
(4) 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 Sec. Sec.
390.125 and 390.131. 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) Complete training and testing as required by the Director,
Office of Carrier, Driver and Vehicle Safety Standards.
(6) In the case of a person who has been involuntarily removed,
provide documentation showing completion of any corrective actions
required in the notice of proposed removal.
(g) Effect of final decision by FMCSA. If a person is removed from
the National Registry of Certified Medical Examiners under paragraph
(c) or (e) of this section, the certification credential issued under
Sec. 390.129 is no longer valid. However, the removed person's
information remains publicly available for 3 years, with an indication
that the person is no longer listed on the National Registry of
Certified Medical Examiners as of the date of removal.

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

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

Authority: 49 U.S.C. 504, 508, 31133, 31136, 31149, 31502; sec.
4007(b), Pub. L. 102-240, 105 Stat. 1914, 2152; sec. 114, Pub. L.
103-311, 108 Stat. 1673, 1677; sec. 215, Pub. L. 106-159, 113 Stat.
1748, 1767; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; secs.
5403 and 5524, Pub. L. 114-94, 129 Stat. 1312, 1548, 1560; sec. 2,
Pub. L. 115-105, 131 Stat. 2263; and 49 CFR 1.87.

0
13. Amend Sec. 391.43 by revising paragraph (b) to read as follows:

Sec. 391.43 Medical examination; certificate of physical examination.

* * * * *
(b) Exceptions:

[[Page 26864]]

(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: June 5,
2018.
Raymond P. Martinez,
Administrator.
[FR Doc. 2018-12474 Filed 6-8-18; 8:45 am]
BILLING CODE 4910-EX-P