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###### Department of Transportation

###### Federal Motor Carrier Safety Administration 

          - [FMCSA Docket No. FMCSA-2006-26600] 

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT. 

# ACTION:

Notice of final disposition. 

# SUMMARY:

FMCSA announces its decision to exempt fifty-five individuals from its rule prohibiting persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. The exemptions will enable these individuals to operate CMVs in interstate commerce. 

# DATES:

The exemptions are effective April 30, 2007. The exemptions expire on June 1, 2009. 

# FOR FURTHER INFORMATION CONTACT:

                        Dr. Mary D. Gunnels, Chief, Physical Qualifications Division, (202) 366-4001,                         *fmcsamedical@dot.gov*, FMCSA, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are from 8:30                               ( print page 21317)                            a.m. to 5 p.m., Monday through Friday, except Federal holidays.                     

# SUPPLEMENTARY INFORMATION:

## Electronic Access 

                    You may see all the comments online through the Document Management System (DMS) at:                     *http://dmses.dot.gov.*

                    Docket: For access to the docket to read background documents or comments received, go to                     *http://dms.dot.gov*                     and/or Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.                 

*Privacy Act:*                     Anyone may search the electronic form of all comments received into any of DOT's dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, or other entity). You may review DOT's complete Privacy Act Statement in the                     **Federal Register**                     (65 FR 19477, Apr. 11, 2000). This statement is also available at                     *http://dms.dot.gov.*

## Background 

On March 1, 2007, FMCSA published a notice of receipt of Federal diabetes exemption applications from fifty-five individuals, and requested comments from the public (72 FR 9399). The public comment period closed on April 2, 2007 and two comments were received. 

FMCSA has evaluated the eligibility of the fifty-five applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to, or greater than, the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3). The Agency would like to publish a correction to Mr. Cottongim's profile. Mr. Cottongim was published as having an operator's license from the State of Ohio when he actually holds an operator's license from the State of Indiana. 

## Diabetes Mellitus and Driving Experience of the Applicants 

The Agency established the current standard for diabetes in 1970 because several risk studies indicated that diabetic drivers had a higher rate of crash involvement than the general population. The diabetes rule provides that “A person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control” (49 CFR 391.41(b)(3)). 

                    FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program to Qualify Individuals with Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with Insulin-Treated Diabetes Mellitus (ITDM) to operate CMVs is feasible. The 2003 notice in conjunction with the November 8, 2005 (70 FR 67777)                     **Federal Register**                     Notice provides the current protocol for allowing such drivers to operate CMVs in interstate commerce.                 

These fifty-five applicants have had ITDM over a range of 1 to 40 years. These applicants report no hypoglycemic reaction that resulted in loss of consciousness or seizure, that required the assistance of another person, or resulted in impaired cognitive function without warning symptoms in the past 5 years (with one year of stability following any such episode). In each case, an endocrinologist has verified that the driver has demonstrated willingness to properly monitor and manage their diabetes, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision standard at 49 CFR 391.41(b)(10). 

                    The qualifications and medical condition of each applicant were stated and discussed in detail in the March 1, 2007,                     **Federal Register**                     Notice (72 FR 9399). Because there were no docket comments on the specific merits or qualifications of any applicant, we have not repeated the individual profiles here.                 

## Basis for Exemption Determination 

Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes standard in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce. 

To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologist's medical opinion related to the ability of the driver to safely operate a CMV while using insulin. 

Consequently, FMCSA finds that exempting these applicants from the diabetes standard in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption. 

## Conditions and Requirements 

The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not they are related to an episode of hypoglycemia; (3) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (4) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official. 

## Discussion of Comments 

FMCSA received two comments in this proceeding. The comments are considered and discussed below. 

A letter of recommendation was received in favor of granting the Federal diabetes exemption to Mr. Jamison P. Noel. It was written by Pamela R. Miller who states that Mr. Noel takes exceptional care of his health and is very responsible. 

                    The World Privacy Forum stated its concern that personal medical information tied to identifiable individuals is being published in the                     **Federal Register**                    . They are of the opinion that the disclosure of the medical status of these individuals can have negative consequences for them and their family members.                 

                    The Transportation Equity Act (TEA 21), Section 4007 states that “upon receipt of an exemption request, the Secretary shall publish in the                     **Federal Register**                     a notice explaining the request that has been filed and shall give the public an opportunity to inspect the safety analysis and any other relevant information known to the Secretary and to comment on the request. This                           ( print page 21318)                        subparagraph does not require the release of information protected by law from public disclosure.”                 

                    The Agency publishes a profile on each individual that submits an application in order to provide the public with the information required by TEA 21. The Federal diabetes exemption application informs the applicant, in detail, of all information that will be published in the                     **Federal Register**                     related to their application. Therefore, each applicant is fully informed of this requirement prior to submitting their application.                 

## Conclusion 

After considering the comments to the docket and based upon its evaluation of the fifty-five exemption applications, FMCSA exempts, James F. Andrews, Roger D. Balzan, Ronald K. Barker, James A. Bettis, Daniel W. Bezdek, James A. Burchette, Andrew J. Causey, Ross E. Cheney, Joan L. Chumney, Jerry R. Chandler, Leonard T. Coker, Robert S. Conchola, Sr., Robert M. Cottongim, Don C. Doerfler, Frederick J. Fath, Jason L. Freeseman, Rusty W. Frost, Marcel C. Gagnier, Steven A. Gibbs, Kenneth D. Gregory, Perry S. Green, Paul M. Harris, Andrew J. Hayek, Gary L. Koehn, Randall B. Kutzke, Michael J. Marlin, Marc K. Marsing, Frank J. Mattos, Winfred A. McMurray, Edward T. Megee, Steven T. Moody, Paul E. Mougin, Timothy W. Nelson, Richard W. Newman, Jamison P. Noel, Rex S. Norquist, Steven B. Novak, Lawrence E. Olson, Ronnie L. Patterson, Benigno A. Piedra, David L. Rice, Emiliano Rios, Russell D. Rockefeller, Matthew T. Russell, Larry V. Schwaller, Ellis D. Scott, Scott Sheerer, Lowell P. Smith, Richard L. Strange, Samuel G. Thiel, Robert J. Varetoni, Michael R. Vaupel, David G. White, and Ray W. Wright from the ITDM standard in 49 CFR 391.41(b)(3), subject to the conditions listed under “Conditions and Requirements” above. 

In accordance with 49 U.S.C. 31136(e) and 31315 each exemption will be valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time. 

Issued on: April 24, 2007. 

Pamela M. Pelcovits, 

Acting Associate Administrator, Policy and Program Development.

[FR Doc. E7-8178 Filed 4-27-07; 8:45 am] 

BILLING CODE 4910-EX-P