26846 Federal Register / Vol. 83, No. 112 / Monday, June 11, 2018 / Rules and Regulations 

contact the Captain of the Port Detroit 

or his designated representative to 

obtain permission to do so. Vessel 

operators given permission to enter or 

operate in the safety zone must comply 

with all directions given to them by the 

Captain of the Port Detroit or his 

designated representative. 

Dated: June 6, 2018. 

Jeffrey W. Novak, 

Captain, U.S. Coast Guard, Captain of the 

Port Detroit. 

[FR Doc. 2018–12517 Filed 6–8–18; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 222, 237, and 252 

[Docket DARS–2018–0032] 

RIN 0750–AJ66 

Defense Federal Acquisition 

Regulation Supplement: Repeal of 

DFARS Clause ‘‘Right of First Refusal 

of Employment-Closure of Military 

Installations’’ (DFARS Case 2018– 

D002) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule; correction. 

SUMMARY: DoD is making a correction to 

the final rule published on May 30, 

2018, which amended the Defense 

Federal Acquisition Regulation 

Supplement (DFARS) to remove a 

clause that is duplicative of an existing 

Federal Acquisition Regulation (FAR) 

clause. The document contained an 

incorrect RIN number. 

DATES: Effective June 8, 2018. 

Applicable beginning May 30, 2018. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Williams, telephone 571–372– 

6106. 

SUPPLEMENTARY INFORMATION: In the 

final rule published at 83 FR 24892 on 

May 30, 2018, in the third column, the 

following correction is made to this 

rule: 

The RIN number cited, RIN 0750– 

AJ54, is corrected to read RIN 0750– 

AJ66. 

Amy G. Williams, 

Deputy, Defense Acquisition Regulations 

System. 

[FR Doc. 2018–12492 Filed 6–8–18; 8:45 am] 

BILLING CODE 5001–06–P 

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. 

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 


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1For 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. 

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 FMCSAapproved 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 webbased 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. 

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 nonquantifiable 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 

§ 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 


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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 passwordprotected 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 


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2See 78 FR 28403 (May 17, 2011) and https://

www.regulations.gov/document?D=FMCSA-2008- 

0363-0096. 

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. 

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 


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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 


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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 passwordprotected 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 


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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 § 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 computerbased 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. 


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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 §§ 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 

§ 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 § 390.103 or § 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 § 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 § 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 

§ 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 § 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 ‘‘§§ 390.103 through 

390.115’’ in each place that it appears. 


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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 § 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 § 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 § 390.125 and 

otherwise leaves § 390.105 unchanged. 

Section 390.107 Medical Examiner 

Certification Testing 

The final rule moves proposed 

paragraph (e) to new § 390.127 and 

otherwise leaves § 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 § 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 

‘‘§§ 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 

§ 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 § 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 § 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 § 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 § 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 § 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 § 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 


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3A 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). 

4The 2011 regulatory evaluation can be accessed 

at https://www.regulations.gov/document?D=

FMCSA-2008-0363-0115 (Accessed April 3, 2017). 

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 § 390.103. 

The three requirements are that a 

person: 

• 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 webbased 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 webbased 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 webbased 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$] 

Year Curriculum 

development 

FMCSA and 

VA interface 

development 

Help Desk 

support 

Total 

(undiscounted) 

Total 

(3% discount 

rate) 

Total 

(7% 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. 

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 


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5U.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 ≈ 109.998/99.246). 

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 × 0.50 + 3 × 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 × 0.50 + 70 × 1.0). Distance 

and time inputs are consistent with those in the 

2011 regulatory evaluation of the National Registry 

final rule. 

7See https://www.bls.gov/news.release/archives/ 

ocwage_03302016.pdf (Accessed May 24, 2017). 

8The 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. 

9See https://www.irs.gov/tax-professionals/ 

standard-mileage-rates/ (Accessed April 3, 2017). 

10Both 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. 

11U.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). 

12U.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). 

13Qualified VA Examiners Joining NRCME to 

Replace Attritiont= Certified VA MEs Registered on 

the NRCMEt¥1 × 9%. 

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 × 1.108).5

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 webbased 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 × $102, rounded to the nearest 

whole number). 

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 × 105 miles, 

rounded to the nearest whole number). 

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

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 × 157 hospitals + 1 ME per 

clinic × 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. 

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 


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14Waddell, Gordon and Burton, A Kim. 2006. Is 

Working Good For Your Health and Well Being? 

Available at: http://iedereen-aandeslag.nl/wpcontent/uploads/2016/07/hwwb-is-work-good-foryou.pdf (Accessed March 6, 2017). 

15Executive Office of the President. Executive 

Order 13771 of January 30, 2017. Reducing 

Regulation and Controlling Regulatory Costs. 82 FR 

9339–9341. Feb. 3, 2017. 

16Regulatory Flexibility Act, Public Law 96–354, 

94 Stat. 1164 (codified at 5 U.S.C. 601, et seq.). 

attrition is equal to 10 (10 = 114 × 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) × 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

Year 

Potential number 

of certified 

VA MEs who 

join the 

national registry 

Cost savings per 

1 qualified VA 

examiner 

(7% discount rate) 

Total cost savings 

(7% discount rate) 

Total costs 

(7% discount rate) 

Net cost 

savings 

A B C = A × 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 nonquantifiable 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 wellbeing.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. 

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. 

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. 

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 


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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 


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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 

■ 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, 


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1548, 1558, 1560; sec. 2, Pub. L. 115–105, 

131 Stat. 2263; and 49 CFR 1.81, 1.81a, 1.87. 

■ 2. Amend § 390.5 as follows: 

■ a. Lift the suspension of the section; 

■ b. Add definitions of ‘‘Certified VA 

medical examiner’’, ‘‘Qualified VA 

examiner’’, and ‘‘Veteran operator’’ in 

alphabetical order; and 

■ c. Suspend § 390.5 indefinitely. 

The additions read as follows: 

§ 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). 

■ 3. Amend § 390.5T by adding the 

terms ‘‘Certified VA medical examiner’’, 

‘‘Qualified VA examiner’’, and ‘‘Veteran 

operator’’ in alphabetical order to read 

as follows: 

§ 390.5T 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). 

■ 4. Revise § 390.101 to read as follows: 

§ 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 § 390.5 or § 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 

§ 390.103 or § 390.123. 

Medical Examiner Certification 

Requirements 

■ 5. Add an undesignated center 

heading before § 390.103 to read as set 

forth above. 

■ 6. Amend § 390.103 by revising 

paragraph (a) to read as follows: 

§ 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 § 390.105. 

(3) Complete a training program that 

meets the requirements of § 390.105. 

(4) Pass the medical examiner 

certification test provided by FMCSA 

and administered by a testing 

organization that meets the 

requirements of § 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. 

* * * * * 

§ 390.109 [Amended] 

■ 7. Amend § 390.109 by removing the 

phrase ‘‘with a unique National Registry 

Number’’. 

■ 8. Amend § 390.111 by revising 

paragraphs (a)(1) and (2) and (a)(5)(ii)(B) 

to read as follows: 

§ 390.111 Requirements for continued 

listing on the National Registry of Certified 

Medical Examiners. 

(a) * * * 

(1) Continue to meet the requirements 

of §§ 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 § 390.103(a)(2) within 30 days of 

the change. 

* * * * * 

(5) * * * 

(ii) * * * 

(B) Pass the test required by 

§ 390.103(a)(4). 

* * * * * 

§ 390.113 [Amended] 

■ 9. Amend § 390.113 by removing the 

phrase ‘‘this subpart’’ from the 

introductory text and paragraph (e) and 

adding in its place ‘‘§§ 390.103 through 

390.115’’. 

■ 10. Amend § 390.115 as follows: 

■ 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 ‘‘§§ 390.103 through 

390.115’’ wherever it appears; and 

■ b. By revising paragraphs (d)(2)(ii) and 

(f)(2). 

The revisions read as follows: 

§ 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 § 390.103(a)(2) within 30 days of 

the reinstatement. 

* * * * * 


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(f) * * * 

(2) Report to FMCSA any changes in 

the registration information submitted 

under § 390.103(a)(2). 

* * * * * 

■ 11. Add an undesignated center 

heading and §§ 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. 

§ 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 §§ 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 § 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 

§ 390.125; 

(5) Pass the medical examiner 

certification test provided by FMCSA, 

administered in accordance with 

§ 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 §§ 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 § 390.131(a)(5). 

§ 390.125 Qualified VA examiner 

certification training. 

A qualified VA examiner applying for 

certification under §§ 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. 

§ 390.127 Qualified VA examiner 

certification testing. 

To receive medical examiner 

certification from FMCSA under 

§§ 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. 

§ 390.129 Issuance of the FMCSA medical 

examiner certification credential. 

Upon compliance with the 

requirements of § 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. 

§ 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 §§ 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 § 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 

§ 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 

§ 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 § 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 


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issuing any medical examiner’s 

certificates. 

§ 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 §§ 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 § 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 § 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 

§§ 390.123 through 390.135. 

§ 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 § 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 §§ 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 §§ 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 §§ 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 §§ 390.123 through 


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Federal Register / Vol. 83, No. 112 / Monday, June 11, 2018 / Rules and Regulations 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 §§ 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 § 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 §§ 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 § 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 §§ 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 § 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 §§ 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 § 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 

■ 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. 

■ 13. Amend § 391.43 by revising 

paragraph (b) to read as follows: 

§ 391.43 Medical examination; certificate 

of physical examination. 

* * * * * 

(b) Exceptions: 


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26864 Federal Register / Vol. 83, No. 112 / Monday, June 11, 2018 / Rules and Regulations 

(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 § 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 


daltland on DSKBBV9HB2PROD with RULES