[Federal Register Volume 77, Number 77 (Friday, April 20, 2012)]
[Rules and Regulations]
[Pages 24104-24135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9034]



[[Page 24103]]

Vol. 77

Friday,

No. 77

April 20, 2012

Part IV





 Department of Transportation





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 Federal Motor Carrier Safety Administration





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49 CFR Parts 350, 383, 390, et al.





National Registry of Certified Medical Examiners; Final Rule

Federal Register / Vol. 77 , No. 77 / Friday, April 20, 2012 / Rules 
and Regulations

[[Page 24104]]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 350, 383, 390, and 391

[Docket No. FMCSA-2008-0363]
RIN 2126-AA97


National Registry of Certified Medical Examiners

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

ACTION: Final rule.

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SUMMARY: FMCSA establishes a National Registry of Certified Medical 
Examiners (National Registry) with requirements that all medical 
examiners who conduct physical examinations for interstate commercial 
motor vehicle (CMV) drivers meet the following criteria: Complete 
certain training concerning FMCSA's physical qualification standards, 
pass a test to verify an understanding of those standards, and maintain 
and demonstrate competence through periodic training and testing. 
Following establishment of the National Registry and a transition 
period, FMCSA will require that motor carriers and drivers use only 
those medical examiners on the Agency's National Registry and will only 
accept as valid medical examiner's certificates issued by medical 
examiners listed on the National Registry. FMCSA is developing the 
National Registry program to improve highway safety and driver health 
by requiring that medical examiners be trained and certified so they 
can determine effectively whether a CMV driver's medical fitness for 
duty meets FMCSA's standards.

DATES: Effective on May 21, 2012. Compliance required beginning on May 
21, 2014.

FOR FURTHER INFORMATION CONTACT: Elaine Papp, Office of Carrier, Driver 
and Vehicle Safety Standards (MC-PSP), Federal Motor Carrier Safety 
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. 
Telephone (202) 366-4001. Email: <a href="/cdn-cgi/l/email-protection#94d2d9d7c7d5d9f1f0fdf7f5f8d4f0fbe0baf3fbe2"><span class="__cf_email__" data-cfemail="b7f1faf4e4f6fad2d3ded4d6dbf7d3d8c399d0d8c1">[email protected]</span></a>.

ADDRESSES: Availability of Rulemaking Documents: For access to docket 
FMCSA-2008-0363 to read background documents and comments received, go 
to http://www.regulations.gov at any time, or to U.S. Department of 
Transportation, Room W12-140, 1200 New Jersey Avenue SE., Washington, 
DC 20590, between 9 a.m. and 5 p.m. e.t., Monday through Friday, except 
Federal holidays.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement, published in the Federal Register on 
April 11, 2000 (65 FR 19476), or you may visit http://DocketInfo.dot.gov.

SUPPLEMENTARY INFORMATION: This document is organized as follows:

I. Table of Acronyms and Abbreviations
II. Legal Basis for the Rulemaking
III. Background
IV. Discussion of Comments Received on the Proposed Rule
V. Section-by-Section Explanation of Changes from the NPRM
VI. Regulatory Analyses and Notices


                                       Table of Acronyms and Abbreviations
----------------------------------------------------------------------------------------------------------------
                      Acronym or  abbreviation                                           Term
----------------------------------------------------------------------------------------------------------------
AANP...............................................................  American Academy of Nurse Practitioners
AAOHN..............................................................  American Association of Occupational Health
                                                                      Nurses
AAPA...............................................................  American Academy of Physician Assistants
ABA................................................................  American Bus Association
ACOEM..............................................................  American College of Occupational and
                                                                      Environmental Medicine
ADA................................................................  American Diabetes Association
Advocates..........................................................  Advocates for Highway and Auto Safety
AME................................................................  Aviation Medical Examiner
APN................................................................  Advanced Practice Nurse
ATA................................................................  American Trucking Associations, Inc.
BISC...............................................................  Bus Industry Safety Council
CAA................................................................  Clean Air Act
CDL................................................................  Commercial Driver's License
CDLIS..............................................................  Commercial Driver's License Information
                                                                      System
CME................................................................  Continuing Medical Education
CMV................................................................  Commercial Motor Vehicle
DC.................................................................  Doctor of Chiropractic
DEP................................................................  Diabetes Expert Panel
DO.................................................................  Doctor of Osteopathy
DOT................................................................  U.S. Department of Transportation
EA.................................................................  Environmental Assessment
FHWA...............................................................  Federal Highway Administration
FMCSA..............................................................  Federal Motor Carrier Safety Administration
FMCSRs.............................................................  Federal Motor Carrier Safety Regulations
HIPAA..............................................................  Health Insurance Portability and
                                                                      Accountability Act
ISAREC.............................................................  Indiana Statewide Association of Rural
                                                                      Electric Cooperatives
LTCCS..............................................................  Large Truck Crash Causation Study
LFC................................................................  Licencia Federal de Conductor
MCMIS..............................................................  Motor Carrier Management Information System
MCSAP..............................................................  Motor Carrier Safety Assistance Program
MD.................................................................  Doctor of Medicine
ME.................................................................  Medical Examiner
MEP................................................................  Medical Expert Panel
Med. Cert./CDL.....................................................  Medical Certification Requirements as Part
                                                                      of the CDL
MOU................................................................  Memorandum of Understanding
MRB................................................................  (FMCSA's) Medical Review Board
MRO................................................................  Medical Review Officer

[[Page 24105]]

 
NADME..............................................................  National Academy of DOT Medical Examiners
NAFTA..............................................................  North American Free Trade Agreement
NCCA...............................................................  National Commission of Certifying Agencies
NPRM...............................................................  Notice of Proposed Rulemaking
National Registry..................................................  National Registry of Certified Medical
                                                                      Examiners
NSTA...............................................................  National School Transportation Association
NTSB...............................................................  National Transportation Safety Board
OOIDA..............................................................  Owner-Operator Independent Drivers
                                                                      Association
PA.................................................................  Physician Assistant
PHI................................................................  Protected Health Information
PIA................................................................  Privacy Impact Assessment
PII................................................................  Personally Identifiable Information
PRA................................................................  Paperwork Reduction Act
RDS................................................................  Role Delineation Study
RIA................................................................  Regulatory Impact Analysis
SAFETEA-LU.........................................................  Safe, Accountable, Flexible, Efficient
                                                                      Transportation Equity Act: A Legacy for
                                                                      Users
SBA................................................................  Small Business Administration
SDLAs..............................................................  State Driver Licensing Agencies
Wynne..............................................................  Wynne Transport Services, Inc.
----------------------------------------------------------------------------------------------------------------

I. Summary of the Final Rule

    This rule establishes a training, testing, and registration program 
to certify medical professionals as qualified to conduct medical 
certification examinations of commercial drivers. Current regulations 
require all interstate commercial drivers (with certain limited 
exceptions) to be medically examined by a licensed health care provider 
to determine whether these drivers meet the FMCSA physical 
qualification requirements. All drivers must carry a medical examiner's 
certificate as proof that they have passed this physical qualification 
examination. The MEs who conduct said physical examinations must retain 
copies of the Medical Examination Reports of all drivers they examine 
and certify. The Medical Examination Report lists the specific results 
of the various medical tests used to determine whether a driver meets 
the physical qualification standards set forth in subpart E of part 391 
of the FMCSRs.
    Before the adoption of this rule, there was no required training 
program for the medical professionals who conduct driver physical 
examinations, although the FMCSRs required MEs to be knowledgeable 
about the regulations (49 CFR 391.43(c)(1)). The former rules required 
that any medical professional licensed by his or her State to conduct 
physical examinations could conduct driver medical certification exams. 
No specific knowledge of the Agency's physical qualification standards 
was required or verified by testing. As a result, some of the medical 
professionals who conduct these examinations may be unfamiliar with 
FMCSA physical qualification standards and how to apply them. These 
professionals may also be 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.
    This rule establishes the National Registry to ensure that all MEs 
who conduct driver medical certifications have been trained in FMCSA 
physical qualifications standards and guidelines. In order 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 the Agency's physical qualifications standards and 
guidelines and how to apply them to drivers. Upon passing this 
certification test, and meeting the other administrative requirements 
associated with the Program, MEs will be listed on the National 
Registry. Once this rule is fully implemented, only medical 
certificates issued to drivers by MEs on the National Registry will be 
considered valid by the Agency as proof of medical certification.

II. Legal Basis for the Rulemaking

    The primary legal basis for the National Registry of Certified 
Medical Examiners program comes from 49 U.S.C. 31149, enacted by 
section 4116(a) of Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users, Public Law 109-59, 119 
Stat. 1726 (Aug. 10, 2005) (SAFETEA-LU). Subsection (d) of section 
31149 provides that:
    The Secretary, acting through the Federal Motor Carrier Safety 
Administration--
    <bullet> Shall establish and maintain a current national registry 
of medical examiners who are qualified to perform examinations and 
issue medical certificates;
    <bullet> Shall remove from the registry the name of any medical 
examiner that fails to meet or maintain the qualifications established 
by the Secretary for being listed in the registry or otherwise does not 
meet the requirements of this section or regulation issued under this 
section;
    <bullet> Shall accept as valid only medical certificates issued by 
persons on the national registry of medical examiners; and
    <bullet> May make participation of medical examiners in the 
national registry voluntary if such a change will enhance the safety of 
operators of commercial motor vehicles.
    In addition to implementing the provisions in subsection (d), which 
specifically directs the establishment of a national registry of 
qualified medical examiners, FMCSA implements through this rulemaking 
certain other provisions from section 31149 related to a national 
registry. First, subsection (c) requires FMCSA, with the advice of the 
Agency's Medical Review Board and Chief Medical Examiner (established 
by subsections (a) and (b), respectively), to develop, as appropriate, 
specific courses and materials for training required for medical 
examiners to be listed on a national registry. Medical examiners will 
be required to undergo initial and periodic training and testing in 
order to be listed on the national registry (section 31149(c)(1)(A)(ii) 
and (c)(1)(D)). Second, FMCSA also implements requirements for medical 
examiners to

[[Page 24106]]

transmit electronically, on a monthly basis, certain information about 
completed Medical Examination Reports of CMV drivers (section 
31149(c)(1)(E)). Third, the rule requires medical examiners to provide 
copies of Medical Examination Reports and medical examiner's 
certificates to FMCSA within 48 hours of a request from enforcement 
personnel. This level of responsiveness is required to enable FMCSA to 
investigate patterns of errors or improper certification by medical 
examiners, in accordance with 49 U.S.C. 31149(c)(2). Finally, the rule 
establishes the procedures and grounds for removal of medical examiners 
from the National Registry, as authorized by section 31149(c)(2) and 
(d)(2).
    SAFETEA-LU also revised the statutory minimum standards for the 
regulation of CMV safety to ensure that medical examinations of CMV 
drivers are ``performed by medical examiners who have received training 
in physical and medical examination standards and, after the national 
registry maintained by the Department of Transportation * * * is 
established, are listed on such registry'' (49 U.S.C. 31136(a)(3), as 
amended by section 4116(b) of SAFETEA-LU). The statute requires FMCSA, 
in developing its regulations, to consider both the effect of driver 
health on the safety of CMV operations and the effect of such 
operations on driver health (49 U.S.C. 31136(a)).
    In addition to the general rulemaking authority in 49 U.S.C. 
31136(a), the Secretary of Transportation is specifically authorized by 
section 31149(e) to ``issue such regulations as may be necessary to 
carry out this section.'' Authority to establish and implement the 
National Registry program has been delegated to the Administrator of 
FMCSA (49 CFR 1.73(g)).

III. Background

    On December 1, 2008, FMCSA published a notice of proposed 
rulemaking (NPRM) to establish the National Registry (73 FR 73129). The 
public comment period for the NPRM closed on January 30, 2009. The 
FMCSA also proposed to require that all medical examiners who conduct 
physical examinations for interstate CMV drivers complete certain 
training concerning FMCSA physical qualification standards, pass a test 
to verify an understanding of those standards, and maintain and 
demonstrate competence through periodic training and testing. Following 
establishment of the National Registry and a transition period, only 
medical examiner's certificates issued by medical examiners listed on 
the National Registry would be accepted as valid.

IV. Discussion of Comments Received on the Proposed Rule

A. Overview of Comments

    In response to the December 2008 NPRM, FMCSA received approximately 
80 comments. Most of the commenters were individuals, many of whom 
identified themselves as health care professionals. Among other 
commenters were the following: nine health care provider professional 
associations, among them the American College of Occupational and 
Environmental Medicine (ACOEM) and the American Chiropractic 
Association; the American Diabetes Association; five trucking and other 
trade associations, including the American Trucking Associations, Inc. 
(ATA), Owner-Operator Independent Drivers Association (OOIDA), and 
jointly from American Bus Association (ABA) and Bus Industry Safety 
Council (BISC); six motor carriers; six other private businesses, 
including driver training and testing organizations; nine State 
agencies (from Arizona, California, Delaware, Florida, Illinois, 
Indiana, Iowa, Missouri, and Virginia); Advocates for Highway and Auto 
Safety (Advocates); and the National Transportation Safety Board 
(NTSB). Comments were also received from FMCSA's Medical Review Board 
(MRB), an advisory group of physicians appointed by FMCSA to make 
evidence-based recommendations for the development of physical 
qualification standards for drivers, driver examination requirements, 
and materials for training Medical Examiners (MEs). The MRB is convened 
by FMCSA to provide information, advice, and recommendations to the 
Secretary of Transportation and the FMCSA Administrator on the 
development and implementation of science-based physical qualification 
standards applicable to interstate CMV drivers. The MRB does not hold 
regulatory development responsibilities, manage programs, or make 
decisions affecting such programs.
    Fourteen commenters expressed support for the proposed rule. 
However, nearly all of those supporting the proposed rule added 
recommendations or voiced concern about various parts of the proposed 
requirements, including increased costs and training requirements for 
MEs, the implementation period, and the lack of a developed training 
curriculum. Seven commenters explicitly opposed the proposed rule. 
Other commenters expressed serious concerns over specific requirements 
that they believed would cause the proposed rule to fail, including 
increased costs, lack of access to MEs, and driver privacy rights if 
State Driver Licensing Agencies (SDLAs) are permitted to obtain the 
commercial driver's Medical Examination Reports. The following sections 
provide details regarding specific issues raised by the commenters.

B. Scope of National Registry Program

1. Eligibility To Be a Medical Examiner
    Who should be eligible? Under 49 CFR 390.103, FMCSA proposed a 
requirement, based on the existing regulation at 49 CFR 390.5, that 
medical examiners must be licensed, certified, or registered in 
accordance with applicable State laws and regulations to perform 
physical examinations. The list of major health care professionals who 
may apply for ME certification included: Advanced Practice Nurses 
(APNs), Doctors of Chiropractic (DCs), Doctors of Medicine (MDs), 
Doctors of Osteopathy (DOs), Physician Assistants (PAs), or other 
health care professionals authorized by their States to perform 
physical examinations. Commenters asserted that only physicians (MDs 
and DOs), or only physicians, APNs, and PAs, or only health care 
providers who are permitted by their States to prescribe medications, 
should be eligible to be certified and be on the National Registry. 
Others argued that other health care professionals who are licensed by 
their States to perform physical examinations are qualified to perform 
the driver examinations and should be eligible.
    Several commenters thought that the proposed requirements would 
lead to a decrease in the quality of MEs. Arizona stated that with 
fewer doctors serving as MEs due to the time needed for training and 
testing, there would be an increase in the number of allied health and 
non-physician medical professionals completing examinations. On the 
other hand, Schneider National suggested that the National Registry 
requirements will deter only those medical professionals who today may 
be performing commercial driver medical examinations with little or no 
knowledge of the driver physical requirements of FMCSA.
    FMCSA Response: The final rule makes no change in the regulatory 
text. In a 1992 rule, the Federal Highway Administration (FHWA) (which 
was responsible for administering Federal motor carrier safety 
requirements until 1999) amended the FMCSRs to expand the definition of 
``medical examiner'' to allow other health care professionals

[[Page 24107]]

such as PAs, APNs, and DCs, in addition to MDs and DOs authorized 
previously, to perform examinations of CMV drivers (57 FR 33276; July 
28, 1992). All medical examiners were required to be licensed, 
registered, or certified by their States to perform physical 
examinations, and to be proficient in the use of, and to use, medical 
protocols necessary to perform the examination in accordance with the 
FMCSRs. The 1992 rule acknowledged that should an ME discover a medical 
condition outside his or her scope of practice, best practice would be 
to refer the driver to an MD, DO, or specialist. The FHWA indicated 
this was consistent with what other medical practitioners do in ``this 
age of specialization.'' States determine who is legally qualified to 
perform physical examinations within their jurisdictions by setting 
scope of practice requirements, and FMCSA will continue to rely on 
State determinations.
    Qualification by Other Criteria. FMCSA proposed that medical 
examiner candidates be required to complete training that meets the 
core curriculum specifications established by FMCSA for medical 
examiner training and pass an FMCSA-provided certification test. Both 
the core curriculum specifications and the FMCSA-provided certification 
test will be based on FMCSA regulations and guidelines.
    Several commenters proposed the substitution of other types of 
training for the training requirements proposed in the NPRM. Two MDs, 
and the States of Arizona and Delaware, suggested that Federal Aviation 
Administration (FAA) aviation medical examiners (AMEs) could be 
certified, without further training or testing as FMCSA MEs. One 
physician recommended that we accept MD and DO board certification. The 
American Association of Occupational Health Nurses (AAOHN) suggested 
similarly that we should reduce required training for APNs and 
physicians who are experienced and professionally trained in 
occupational health.
    National Registry Training Systems, an independent entity not 
affiliated with FMCSA, and a clinician suggested that we should certify 
health care professionals who participated as subject matter experts in 
the development of the National Registry program training and testing 
components. Similarly, a MD suggested that we permit health care 
professionals to by-pass training if they have a working knowledge of 
the DOT requirements and guidance.
    FMCSA Response: The FMCSA acknowledges the specialized knowledge 
and expertise that some health care professionals bring to the driver 
qualification process. Physicians can and do serve as both MEs for CMV 
drivers and designated AMEs for pilots. However, the National Registry 
program has been developed with strategic differences from the FAA AME 
designee program, as detailed in the regulatory evaluation for this 
rulemaking, to be suitable for the oversight of large numbers of MEs 
performing examinations for large numbers of drivers, using medical 
standards and guidelines developed specifically for CMV drivers. The 
final rule will require all ME candidates to undergo the initial 
training and the certification testing that objectively measures 
candidate qualification and ensures that all MEs have the same level of 
working knowledge of the FMCSA regulations and guidelines. Due to the 
specialized nature of CMV driving, FMCSA retains the requirement that 
MEs must take training and pass its certification test to give driver 
exams. Only the specified training will provide pertinent knowledge of 
the FMCSA regulations and guidelines.
    Limitations on Performance of Driver Examinations. FMCSA did not 
propose any change in the regulations and guidelines for performance of 
the driver qualification physicals.
    The MRB's members submitted comments that reiterated the Board's 
recommendation that only physicians should perform examinations on 
drivers who have more severe or multiple medical conditions. ADA 
commented specifically on drivers with diabetes. Claiming that not all 
MEs would have the requisite clinical knowledge to complete the 
examination, ADA urged FMCSA to include physicians who treat 
individuals with diabetes, including endocrinologists, in the process 
of certifying drivers with diabetes. The commenter said that a 
physician or endocrinologist should examine drivers with that condition 
before such drivers are rejected. ADA also referenced the 
recommendations of FMCSA's Medical Expert Panel (MEP) on Diabetes, 
Expert Panel Commentary and Recommendations, Diabetes and Commercial 
Motor Vehicle Driver Safety, September 8, 2006, available at http://www.fmcsa.dot.gov/rules-regulations/topics/mep/mep-reports.htm and 
recommended that no denial of certification could be made for any 
reason related to diabetes without the review and approval of an 
endocrinologist.
    OOIDA, the American Academy of Nurse Practitioners (AANP), and the 
American Academy of Physician Assistants (AAPA) claimed that we should 
reject the recommendation to only allow physicians as MEs for drivers 
who have multiple active medical problems, claiming that this 
requirement would require most drivers to be examined by MEs who are 
physicians and would contribute to a shortage of qualified MEs. Both 
OOIDA and AAPA stated that this requirement would negatively affect a 
significant portion of the CMV driver population. OOIDA said that a 
large percentage of drivers would have to travel greater distances for 
medical exams. AAPA noted the results of a survey of 1,167 drivers 
across the United States, which found 32 percent of drivers with 
hypertension and 14 percent with diabetes. AAPA said that the proposed 
requirement could mean a driver who discovers an additional condition 
during an exam with an ME, who is not a physician, would have to stop 
that examination and reschedule with a physician.
    AANP and AAPA argued that practitioners in their respective 
professions are well-qualified to perform examinations on drivers with 
multiple active medical problems. AANP noted that its members have been 
performing driver examinations since 1992 without incident. AAPA 
similarly claimed that PAs have regularly been performing examinations 
on this class of drivers for 17 years and have specifically received 
authorization to do so in the FMCSRs. This commenter also noted that 
State laws and regulations do not preclude PAs from treating patients 
with diabetes or multiple medical conditions.
    AAPA stated that SAFETEA-LU and the Agency charge the MRB with 
making science and evidence-based recommendations, but the commenter 
claimed that no evidence, studies, or data were presented in support of 
restricting PAs from performing examinations on drivers with multiple 
active medical problems. AAPA argued that it would be unfair to 
eliminate PAs from performing these types of examinations since the 
commenter and many individual PAs aided FMCSA's development of the 
National Registry program by participating as subject matter experts in 
the development of several components of the program.
    Finally, because of the potential for a conflict of interest in 
completing an objective examination, comments from the MRB and 
Schneider National recommended against allowing primary care or 
personal health care

[[Page 24108]]

professionals to perform the examinations. The MRB advised FMCSA to 
allow for an exception to this prohibition if no other medical provider 
was located within a 200-mile radius from the driver's residence or 
location of employment. In its comments, OOIDA recommended that the 
final rule expressly prohibit motor carriers from restricting the 
driver's rights to be examined by the ME of his or her choice, noting 
that once the final rule is implemented, all MEs listed on the National 
Registry will be equally qualified to perform a driver examination. 
Therefore, there should be no ME quality concern on the part of the 
motor carrier.
    FMCSA Response: We do not believe we should impose an additional 
burden on drivers by requiring them to be examined by MEs who do not 
provide primary care to them. FMCSA anticipates that requirements for 
medical examiners to be trained and tested in FMCSA standards and 
guidelines will result in more consistency in certification decisions 
among MEs. FMCSA anticipates that MEs will be deterred from making 
driver qualification decisions that violate FMCSA standards by the 
provisions in the rule that would allow FMCSA to remove an ME from the 
National Registry.
    In addition, we believe that employers should continue to have the 
option to require their drivers to be examined by a ME selected and/or 
compensated by the employer, because they have an obligation to require 
drivers to comply with the regulations that apply to the driver (49 
U.S.C. 31135(a) and 49 CFR 390.11). This option is permitted by 49 CFR 
390.3(d), which states that nothing in the FMCSRs ``shall be construed 
to prohibit an employer from requiring and enforcing more stringent 
requirements relating to safety of operation and employee safety and 
health.''
    Comments that recommended restricting some MEs from performing 
examinations for certain drivers or to include specialists in the 
driver certification decision relate to medical standards and 
guidelines for determining the physical qualifications of drivers and 
are therefore beyond the scope of this rulemaking. Moreover, the MRB 
does not have authority to undertake regulatory development 
responsibilities, manage programs, or make decisions affecting such 
programs.
2. Employer and Carrier Responsibilities
    FMCSA proposed that all driver examinations would be performed by a 
medical examiner on the National Registry three years after the final 
rule implementation date, and all examinations for drivers who worked 
for an employer who employed 50 or more drivers would be required to be 
performed by a medical examiner on the National Registry two years 
after the final rule implementation date. FMCSA also proposed that 
medical examiners on the National Registry would be required to provide 
copies of the Medical Examination Reports and medical examiner's 
certificates to FMCSA or to authorized Federal, State and local 
enforcement agency personnel within 48 hours of the request.
    Daecher Consulting Group and Comcar Industries expressed concern 
that motor carriers would be responsible for determining whether a 
driver's physical qualification information was accurate. Asserting 
that the proposed rule was an attempt to make carriers responsible for 
ensuring that physical examination data are correct, Comcar Industries 
said that a carrier could not provide such assurances because it is not 
present for the physical examination and has no access to medical 
information from any previous employer.
    Dart Transit Company suggested that the ME should be required to 
notify the motor carrier if a driver fails the medical examination. ATA 
recommended that motor carriers should have access to an electronic 
database to obtain their drivers' Medical Examination Reports. OOIDA 
opposed disclosure of sensitive medical information to motor carriers 
because misconceptions or prejudices about the driver's medical 
condition could lead to termination of an employee from a job, even 
though the condition would not prevent the driver from doing his or her 
job in a safe and professional manner.
    Daecher Consulting Group stated that there was no method proposed 
in the NPRM for notifying a carrier that it employs a driver certified 
by an examiner who was removed from the National Registry. The 
commenter said that unless a notification system is devised and 
implemented (which would require registering Commercial Driver's 
License (CDL)-licensed drivers in a database, matching them with 
current carriers employing them, and having a method to track any 
change in carriers), significant liability may rest with carriers that 
use a driver certified by a once-certified ME who has since been 
involuntarily removed from the National Registry.
    FMCSA Response: Although the rule provides for FMCSA and State and 
local law enforcement personnel to obtain copies of driver examination 
records, the purpose of this requirement is to monitor ME performance, 
not driver qualification. FMCSA is not requiring employers to monitor 
ME performance. In order to clarify this matter in light of these 
comments, FMCSA is making one change in employer responsibility under 
this rule. FMCSA is adding a requirement that the employer verify that 
the driver was issued a medical certificate by an ME on the National 
Registry and place a note to that effect in the driver qualification 
file required by 49 CFR 391.51. This will also be consistent and 
enhance compliance with 49 U.S.C. 31149(d)(3). Beyond that, FMCSA 
recognizes that employers are not required by the current FMCSA 
regulations to obtain copies of Medical Examination Reports for their 
drivers, and does not hold employers responsible for knowing what 
medical conditions may be recorded therein.
    FMCSA has the discretion to void any medical certificate issued to 
a driver by a medical examiner who has been removed from the National 
Registry (49 U.S.C. 31149(c)(2)). The NPRM did not need to propose and 
does not include any provisions to implement that authority, which can 
be exercised by FMCSA on a case-by-case basis when the facts and 
circumstances indicate that it would be appropriate.
    Notification of employers of failed examinations is desirable, and 
in the future, FMCSA may use driver physical examination results data 
to notify employers. However, FMCSA modifies the final rule to require 
employers, upon hiring or upon expiration of a medical examiner's 
certificate on or after 24 months after the effective date of this 
final rule to verify the driver presenting a medical certificate was 
examined by a ME on the National Registry. The rule does not require 
employers to recheck the National Registry Web site to determine if the 
medical examiner has been involuntarily removed subsequent to 
conducting an examination and completing the certificate.
3. State Responsibilities
    FMCSA proposed revising medical examiner's certificate to include 
the National Registry number issued by FMCSA to identify the ME. 
California and Virginia expressed uncertainty about the State's role in 
determining whether the medical examination was completed by an ME on 
the National Registry and expressed concern about the cost of re-
programming the Commercial Driver's License Information System (CDLIS) 
to query the ME database, when processing driver medical 
certifications. Indiana asked whether MEs would be expected to include 
the National Registry number

[[Page 24109]]

on any old medical examiner's certificate forms or would States have to 
look up the number.
    Indiana questioned how involuntary removal of an ME from the 
National Registry will affect that ME's previously issued certificates. 
Similarly, Indiana also requested that we clarify how we will notify 
SDLAs that an ME has been removed from the National Registry.
    FMCSA Response: States will not be required to cross-check National 
Registry numbers with the National Registry database when processing 
driver medical certifications. Indiana's concern about entering 
National Registry numbers on old certificates is moot, because the 
final rule will not allow the use of any old forms. This final rule 
does not require changes to State driver's license databases or CDLIS 
beyond those required by the already-published final rule in Medical 
Certification Requirements as Part of the CDL (73 FR 73096, December 1, 
2008) (Med. Cert./CDL). However, FMCSA anticipates initiating a future 
rulemaking to expand medical certification information exchange with 
the States.
    Certificates previously issued by a medical examiner who has been 
involuntarily removed are not automatically voided. FMCSA has the 
discretion to void any medical certificate issued to a driver by an ME 
who is removed from the National Registry (49 U.S.C. 31149(c)(2)). The 
NPRM did not need to propose and does not include any provisions to 
implement that authority, which can be exercised by FMCSA on a case-by-
case basis when the facts and circumstances indicate that it would be 
appropriate.
    State Investigation of Driver Certification. Advocates criticized 
the lack of any systematic procedure in the proposed rule that requires 
State law enforcement agencies to compare each Medical Examination 
Report with the related medical examiner certificate. The commenter 
noted that in the preamble to the proposal we do not explain why and 
how State enforcement agencies would have reason to investigate 
specific Medical Examination Reports and medical certificates. On the 
other hand, OOIDA argued that Federal preemption would prohibit State 
and local agencies from requesting an ME to give a driver's Medical 
Examination Report to them as we proposed. The commenter said that once 
we prescribe safety standards requiring MEs on the National Registry to 
examine and issue certificates to show a CMV driver's physical 
condition is adequate for safe vehicle operations, those regulations 
would have a preemptive effect under section 31136.
    OOIDA cited Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995), 
and Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88, 98 
(1992), in support of implied preemption ``when a `state law is in 
actual conflict with federal law * * * or where state law stands as an 
obstacle to the accomplishment and execution of the full purposes and 
objectives of Congress'.'' OOIDA argued that allowing State and local 
authorities to access a driver's personal medical information might 
dissuade drivers from openly discussing their health issues with an ME. 
OOIDA said unqualified State government personnel might apply their own 
standards to driver medical information and inconsistently judge them 
medically unfit for reasons that are erroneous or unjustifiably exceed 
the Federal medical standards being applied. OOIDA concluded that, at a 
minimum, we should require States to limit any Medical Examination 
Report (commonly called the ``long-form'') request to circumstances 
where the State has clearly articulated legitimate reasons for 
believing that the medical certificate was falsified or otherwise 
improperly issued.
    FMCSA Response: OOIDA's comment does not recognize that State and 
local enforcement personnel have a role in enforcing the FMCSRs. The 
final rule retains the requirement for MEs to give State and local 
enforcement personnel access to Medical Examination Reports and ME 
certificates within 48 hours of a request for purposes of monitoring ME 
performance. States that receive Motor Carrier Safety Assistance 
Program (MCSAP) grant funds are required as a condition of receiving 
the grants to adopt regulations that are compatible with these final 
regulations (49 U.S.C. 31102(a) and 49 CFR 350.201(a)). States 
receiving MCSAP grants, therefore, will generally have to adopt 
regulations compatible with requirements that all drivers be examined 
by an ME on a registry of trained and certified MEs applicable to both 
interstate and intrastate transportation as soon as practicable, but 
not later than 3 years from effective date of this rule (49 CFR 
350.331(d)).\1\ State government personnel operating under MCSAP will 
have the same authority and responsibility to request that an ME 
produce a driver's Medical Examination Report that FMCSA personnel will 
have in accordance with this final rule. The States receiving MCSAP 
grants will be expected to adopt and implement compatible provisions 
and apply them consistently. There will be no inconsistency between 
State and Federal law that would require either express or implied 
preemption.
---------------------------------------------------------------------------

    \1\ As explained later, States that have in effect variances for 
physical qualification requirements for drivers operating CMVs in 
intrastate commerce will have the option of not establishing a 
separate registry of medical examiners trained and qualified to 
apply those standards.
---------------------------------------------------------------------------

    FMCSA believes that the establishment of the National Registry, 
with its training and testing requirements will improve the performance 
of the MEs. Verification of the certification and listing of the MEs on 
the National Registry will be enhanced. In addition, the availability 
of the examiner's records to enforcement personnel, when necessary to 
conduct an investigation into the validity of the medical certificate, 
is sufficient to deter improper medical certification of CMV drivers.
4. Intrastate-Only CMV Drivers
    FMCSA proposed that MEs would include information on the monthly 
reports of driver examinations whether each driver operated only in 
intrastate commerce. OccuMedix and Missouri raised the issue that MEs 
would not be able to distinguish between interstate drivers and 
intrastate-only drivers required by their States to obtain a medical 
certification from an ME on the National Registry. The commenters 
suggested that the final rule should require all drivers--interstate 
and intrastate--to obtain medical examinations from examiners listed on 
the National Registry.
    Missouri said we should consider that many States require CMV 
drivers operating in intrastate commerce to follow the FMCSRs and that 
there would be confusion if we require MEs to examine only CDL drivers 
operating in interstate commerce. Missouri argued that we can promote 
public safety further if all nonexempt CDL drivers are required to 
obtain medical examinations from examiners listed on the National 
Registry, even when the drivers operate CMVs exclusively in intrastate 
commerce.
    FMCSA Response: States will continue to set requirements for 
intrastate drivers. States that receive MCSAP grant funds are required, 
as a condition of receiving the grants, to adopt regulations compatible 
with these final regulations (49 U.S.C. 31102(a) and 49 CFR 
350.201(a)); however, the Agency is including in this final rule a 
revision to 49 CFR 350.341 to make it clear that States that have in 
effect variances for physical qualification requirements for drivers 
operating CMVs in intrastate commerce will have

[[Page 24110]]

the option of not establishing a separate registry of medical examiners 
trained and qualified to apply those intrastate standards, although 
they have the discretion to do so if they wish. A State with variances 
in effect under 350.341(h)(1) and (2) that chooses to set up a separate 
registry of examiners qualified to apply those variances to intrastate 
drivers will not be allowed to use MCSAP funds for that purpose. Such 
use of MCSAP grant funds would not be consistent with the overall 
purpose of establishing a uniform standard for all CMV drivers 
nationwide. Intrastate-only CMV drivers in States that do not have such 
variances can utilize MEs on the National Registry because they will be 
trained and qualified in applying physical qualification standards that 
are identical for both interstate and intrastate drivers. All MCSAP 
States, either with or without variances, thus will have the option to 
establish their own registries, but FMCSA is not requiring them to do 
so as a condition of receiving MCSAP funds.
    The rule does not restrict MEs who are certified to perform 
physical examinations for interstate drivers from performing physical 
examinations for intrastate only drivers. MEs should ask drivers 
whether they intend to operate in intrastate commerce only. FMCSA Form 
MCSA-5850, CMV Driver Medical Examination Results Form, requires MEs to 
identify ``Intrastate Only'' drivers on the CMV Driver Examination 
Results so that FMCSA can distinguish data about intrastate-only driver 
examinations.
5. Canadian and Mexican Drivers
    The NPRM noted that existing reciprocity agreements with Canada and 
Mexico will govern Canada-domiciled and Mexico-domiciled drivers, 
respectively, operating in the United States (73 FR 73131, n.3). As a 
result, Canadian and Mexican drivers do not need to be examined by an 
ME on the National Registry before operating a CMV in the United 
States. OOIDA said this language constituted an exemption from Federal 
regulations, and that we had no authority to grant such an exemption.
    FMCSA Response: OOIDA's contention that 49 U.S.C. 31149 does not 
allow FMCSA to ``exempt'' Canadian and Mexican drivers operating in the 
United States from being examined by an ME is incorrect because two 
separate executive agreements \2\ with Canada and Mexico remain in 
effect. A brief history of these two agreements is provided for 
clarification.
---------------------------------------------------------------------------

    \2\ Executive agreements have the same legal effect as treaties.
---------------------------------------------------------------------------

    Prior to the amendments made by section 4116(b) of SAFETEA-LU, the 
provisions of 49 U.S.C. 31136(a)(3) stated:
    The Secretary of Transportation shall prescribe regulations on 
commercial motor vehicle safety. The regulations shall prescribe 
minimum safety standards for commercial motor vehicles. At a minimum, 
the regulations shall ensure that--
    <bullet> The physical condition of operators of commercial motor 
vehicles is adequate to enable them to operate the vehicles safely. * * 
*

For this purpose, a ``commercial motor vehicle'' is defined in 49 
U.S.C. 31132(1).
    FMCSA regulations generally required all operators of CMVs in the 
United States to be examined by an ME (as defined in 49 CFR 390.5) and 
to obtain from the examiner a certificate that the operator is 
physically qualified. 49 CFR 391.11(b)(4) and 49 CFR part 391, subpart 
E. These requirements will continue to apply after establishment of the 
National Registry Program.
    In 1991, the Secretary and his counterpart in Mexico entered into 
an agreement on the matter of driver license reciprocity. The agreement 
is contained in a memorandum of understanding (MOU) that was reproduced 
as Appendix A to a final rule issued in 1992 by FMCSA's predecessor 
agency, the FHWA. Commercial Driver's License Reciprocity with Mexico, 
57 FR 31454 (July 16, 1992), affirmed, Int'l Brotherhood of Teamsters 
v. Pe[ntilde]a 17 F.3rd 1478 (DC Cir. 1994). The primary purpose of the 
MOU was to establish reciprocal recognition of the CDL issued by the 
States to U.S. operators and the Licencia Federal de Conductor (LF) 
issued by the government of the United Mexican States (i.e., by the 
national government of Mexico, not by the individual Mexican states). 
In light of the agreement, the FHWA determined that an LF meets the 
standards contained in 49 CFR part 383 for a CDL. 49 CFR 383.23(b)(1) 
and note 1. The FHWA's final rule preamble also states, at 57 FR 31455:

    It should be noted that Mexican drivers must be medically 
examined every 2 years to receive and retain the Licencia Federal de 
Conductor; no separate medical card [certificate] is required as in 
the United States for drivers in interstate commerce. As the 
Licencia Federal de Conductor cannot be issued to or kept by any 
driver who does not pass stringent physical exams, the Licencia 
Federal de Conductor itself is evidence that the driver has met 
medical standards as required by the United States. Therefore, 
Mexican drivers with a Licencia Federal de Conductor do not need to 
possess a medical card while driving a CMV in the United States.

    Implicit in the determination that Mexican drivers with an LF do 
not need to possess a separate medical certificate is an underlying 
determination that the medical examination necessary to obtain the LF 
meets the standards for an examination by an ME in accordance with 
FMCSA regulations, and would therefore meet the requirements of 49 
U.S.C. 31136(a)(3).
    The MOU does not specifically address medical qualifications for 
Mexican drivers operating a CMV in the United States that does not 
require a CDL. In order to enter the United States at the border 
crossing points (all of which are accessed only by federal highways in 
Mexico) a Mexican driver must have a Licencia Federal. FMCSA 
enforcement policy accepts a Licencia Federal as proof of physical 
qualification for a driver to operate a CMV that does not require a CDL 
in the United States.
    In 1998, a similar agreement was reached with Canada under the 
auspices of the Land Transportation Standards Subcommittee established 
by the North American Free Trade Agreement (NAFTA). This agreement 
supplements a 1988 agreement with Canada accepting the CDLs issued by 
Canadian provinces in accordance with the Canadian National Safety Code 
as valid for operation of a CMV in the United States. 49 CFR 383.23(b), 
note 1. The 1998 agreement, which became effective on March 30, 1999, 
provides, with some exceptions, that Canadian drivers holding such a 
CDL issued in Canada are physically qualified to operate a CMV in the 
United States and are not required to possess a medical certificate 
issued by a ME. In Canada, drivers are required to have CDLs in order 
to operate a CMV that would not require a CDL to operate in the United 
States. Under the 1998 agreement, a Canadian CDL issued in conformity 
with the National Safety Code is accepted by FMCSA as proof of a 
driver's physical qualification to operate a CMV in the United States.
    The substance of these two agreements is also reflected in a note 
in 49 CFR 391.41(a)(1), as recently amended. Medical Certification 
Requirements as Part of the CDL, 73 FR 73096, 73127 (December 1, 2008).
    In 2005, 49 U.S.C. 31136(a)(3) was amended by SAFETEA-LU section 
4116(b), which added the following at the end:


[[Page 24111]]


    [T]he periodic physical examinations required of such operators 
are performed by medical examiners who have received training in 
physical and medical examination standards and, after the national 
registry maintained by the Department of Transportation under 
section 31149(d) is established, are listed on such registry.

    As explained above, section 4116(a) of SAFETEA-LU added a new 49 
U.S.C. 31149, which among other things, includes a provision that FMCSA 
``shall accept as valid only medical certificates issued by persons on 
the national registry of medical examiners.'' Section 31149(d)(3).
    OOIDA contends that this statute supersedes the two agreements with 
Canada and Mexico and that drivers from these two countries operating 
CMVs will have to be examined and certified by MEs on the National 
Registry. According to the cases that are cited in OOIDA's comments 
subsequently enacted statutes may abrogate an executive agreement or 
treaty. The case law states, however, that ``neither a treaty nor an 
executive agreement will be considered abrogated or modified by a later 
statute unless such purpose on the part of Congress has been clearly 
expressed.'' Roeder v. Islamic Republic of Iran, 333 F.3d 228, 237 
(D.C. Cir. 2003), cert. denied, 542 U.S. 915 (2004) (internal 
quotations and citations omitted). There is no such clear expression of 
purpose in the relevant statutes. Neither the amended statutes nor 
their legislative histories contain any provision addressing these two 
executive agreements. The reciprocity agreements with Canada and 
Mexico, and the implementing provisions in the note in 49 CFR 
391.41(a)(1), will continue to be in effect after issuance of this 
final rule. Accordingly, Canadian and Mexican drivers operating CMVs in 
the United States who hold the proper licenses will not be required to 
obtain a medical certificate from an ME on the National Registry.
    In any case, FMCSA has reviewed the Canadian and Mexican physical 
qualification processes. Driver medical examinations in Canada are 
performed only by MDs. National standards direct the medical examiners 
when to obtain the opinion of a medical specialist. In addition, in 
most jurisdictions, doctors, including family doctors, have a legal 
obligation to report any medical condition that may affect driving 
functions.
    The medical examinations in Mexico are conducted by Federal 
government doctors or Federal government-approved doctors. In addition, 
the medical certification for an LF is part of Mexico's licensing 
process for commercial drivers. This means the license is not issued or 
renewed unless there is proof the driver has satisfied the Mexican 
physical qualifications standards. FMCSA has compared each of its 
physical qualifications standards with the corresponding requirements 
in Mexico and continues to believe acceptance of the Mexico 
government's medical certificate is appropriate.

C. Components of the National Registry Program

1. Training of Medical Examiners
    Length of Training. In the NPRM, FMCSA projected it would take one 
day to cover the FMCSA core curriculum specifications. Two commenters 
claimed that the length of training was inadequate and we should 
consider increasing it. A chiropractor stated that training should last 
perhaps two long days followed with reading and study materials. NRCME 
Training Systems claimed that it would be very difficult in a lecture-
based setting, with all of the class questions and discussions 
generated in a presentation of this nature, to complete quality 
training in one day. The commenter concluded that, at minimum for a 17-
module National Registry training program to thoroughly provide quality 
training for examiner candidates, five to six, six-hour days of 
didactic lecture in an attended seminar format would be required.
    FMCSA Response: The rule does not prescribe how long training must 
be. The core curriculum specifications are limited to FMCSA regulations 
and guidelines, and the mental and physical demands of CMV driving. One 
advantage of the Public-Private Partnership, is that training can be 
expanded to meet the needs of health care professionals from diverse 
educational and professional backgrounds.
    Training Intervals. The NPRM proposed that the ME would be required 
to complete periodic retraining at least every three years and repeat 
the complete initial training program once every 12 years in lieu of 
periodic training. Some commenters asserted that repeating the initial 
training was not necessary, or suggested other frequencies for 
training. AAPA and ACOEM recommended that FMCSA eliminate the proposed 
requirement to retake the initial training course every 12 years. AAPA 
stated that the requirement offers no benefit to MEs who are already 
required to participate in periodic training and recertification 
examinations. ACOEM supported requiring MEs to obtain 12 hours of 
advanced training every three years instead. Iowa recommended requiring 
MEs to attend a one-day course in person after the sixth year to renew 
certification.
    FMCSA Response: FMCSA agrees with the commenters that the proposed 
requirement for MEs to repeat the initial training is not necessary for 
those MEs who do not allow their certifications to lapse and has 
modified the final rule to require only periodic training at five-year 
intervals for recertification. MEs will be required to pass the test 
for recertification every 10 years.
    Training Program Accreditation. FMCSA proposed that medical 
examiner candidates be required to complete a training program 
accredited by a nationally-recognized medical profession accrediting 
organization. NRCME Training Systems endorsed having post-graduate 
institutions review and approve National Registry training for MEs, 
reasoning that these institutions are already certified by a national 
accrediting agency and that FMCSA would retain control over the 
training programs through third-party post-graduate programs.
    FMCSA Response: Only training programs that have been accredited by 
a nationally recognized medical profession accrediting organization to 
provide continuing education units will be eligible to provide the 
required training to MEs. As long as the training program is 
accredited, and is based on FMCSA's core curriculum specifications and 
guidelines, the Agency does not seek to restrict the number or location 
of programs that provide ME training. Post-graduate divisions of 
colleges and universities would be eligible to provide training to MEs, 
as would other accredited training organizations such as professional 
association continuing medical education (CME) programs and provider 
network training organizations.
    Core Curriculum Specifications. Several commenters expressed 
concern that we did not provide the content of the core curriculum in 
the proposed rule and questioned how it would be established and 
implemented.
    One physician commenter was concerned that since the core 
curriculum specifications have not been developed or approved, it will 
likely be several years before there are a significant number of 
trained MEs to accommodate the proposed requirements. A certified 
Medical Review Officer (MRO) urged us to incorporate good scientific 
rationale into the development of the curriculum and commented that all 
sections of the

[[Page 24112]]

driver examination need to be addressed.
    ABA and BISC requested that we engage the private bus industry in 
developing ME curricula that are related to bus operations and driver 
wellness. ADA requested that the FMCSA-appointed Diabetes Expert Panel 
(DEP) be consulted with regard to curriculum elements pertaining to 
diabetes and suggested that these core curriculum elements be submitted 
to the DEP for final approval. The commenter also suggested that the 
DEP's 2006 suggested training module be incorporated in the curriculum.
    FMCSA Response: The core curriculum specifications are being issued 
as guidance for organizations delivering training for MEs who apply for 
listing on the National Registry when it is implemented. FMCSA 
published a notice of availability of draft guidance and request for 
comments on the core curriculum specifications in the Federal Register 
on May 17, 2011 (76 FR 28403). Additionally, FMCSA has posted these 
specifications on the National Registry Web site (http://nrcme.fmcsa.dot.gov) and in the docket for this rulemaking. The 
guidance for the core curriculum specifications is Appendix A to this 
Federal Register document.
    The guidance for the core curriculum specifications are based on 
current FMCSA regulations on physical qualifications published in 49 
CFR part 391, as well as guidance that is published in 49 CFR 391.43. 
The guidance for the core curriculum specifications are also based on 
the task list developed in the Role Delineation Study (RDS) completed 
in April 2007, as described in the NPRM. The RDS is a rigorous 
methodology regularly employed in the certification and medical fields 
when developing a valid, reliable, and fair certification test. An 
executive summary of the RDS Final Report and the full text of the 
Final Report are available through the National Registry Web site \3\ 
and the docket for this rulemaking.
---------------------------------------------------------------------------

    \3\ http://nrcme.fmcsa.dot.gov/training.aspx, retrieved July 13, 
2011.
---------------------------------------------------------------------------

    The Agency does not envision separate medical criteria for bus 
drivers at this time. Any changes in the basic requirements for 
training specified in 49 CFR 390.105(b) will be subject to notice and 
comment proceedings. On the other hand, future changes in the guidance 
for the core curriculum specifications do not require a notice and 
comment rulemaking proceeding because they will reflect only 
regulations and guidelines for performing the driver physical 
examination. FMCSA has provided and continues to provide for 
stakeholder input into revising the standards and guidelines through 
MRB meetings, and public notice of MRB meetings, including specific 
instructions on where to send comments. FMCSA will revise the guidance 
for the core curriculum specifications only after we have established 
new or revised existing, regulations and guidelines. The training 
provider could expand its course content to tailor training to the 
needs of its target audience but the course content must cover the 
FMCSA core curriculum specifications.
    FMCSA considered the recommendations of the DEP for ME training in 
the development of the guidance for the core curriculum specifications. 
At this time, FMCSA is not adopting the ADA's request to implement the 
recommendation of the DEP on drivers with diabetes. In general, such 
MEPs are convened on an ad hoc basis to act in an advisory capacity to 
FMCSA in its work of reviewing and revising physical qualification 
standards and guidelines. In any event, FMCSA will consider 
recommendations from the MEP on standards and specifications for 
drivers with diabetes in future proceedings.
    Comments on the Notice of Availability of the Core Curriculum 
Specifications.
    FMCSA published a notice of availability and request for comments 
on the draft guidance for the core curriculum specifications in the 
Federal Register on May 17, 2011 (76 FR 28403). Additionally, FMCSA has 
posted this guidance on the National Registry Web site (http://nrcme.fmcsa.dot.gov) and in the docket for this rulemaking. FMCSA 
received five comments from interested parties during the public 
comment period. The Agency considered the public comments on the draft 
guidance and now publishes the guidance as Appendix A to this Federal 
Register document.
    In response to the notice of availability, ATA suggested that FMCSA 
needs to educate MEs about the mental and physical demands of driving a 
CMV. Several commenters suggested that the curriculum convey to MEs an 
understanding of the distinction between guidance and recommendations 
submitted by various FMCSA advisory committees and boards. NRCME 
Training Systems thought that FMCSA expected training programs to give 
continuing education credits. There was also a comment requesting 
notice and comment rulemaking for future changes in the core 
curriculum. There were several comments addressing other aspects of the 
rulemaking other than the core curriculum specifications, which are 
beyond the scope of the notice of availability.
    FMCSA Response: In response to ATA's comment, MEs are, and will 
still be, required to be knowledgeable of the specific physical and 
mental demands associated with operating a CMV. 49 CFR 391.43(c)(1). 
Section 2 of the core curriculum specifications addresses the job of 
CMV driving, including physical and emotional demands. Section 7 
includes consideration of driver ability to perform physical tasks 
associated with operating a CMV.
    The guidance for the core curriculum specifications expands the 
description of the topics to be covered in training, and do not provide 
the details that should be included in the actual training. FMCSA 
commercial driver medical certification regulations, advisory criteria, 
MRB and MEP functions, and other resources on the Web site are outside 
the scope of this notice. Nonetheless, FMCSA continuously reviews and 
updates information on its Web sites for content and clarity, and will 
make sure the difference between regulations, guidance, and advisory 
recommendations are made clear.
    FMCSA wants to clarify that it is not requiring that the training 
given to MEs qualify for continuing education credits, although the 
training organizations must be accredited to give continuing education 
credits.
    The Agency is making no changes to the draft guidance for the core 
curriculum specifications, and issues them as an appendix A to this 
Federal Register document. Only future changes in medical certification 
standards will be subject to notice and comment rulemaking. FMCSA will 
then update the guidance for the core curriculum specifications as 
appropriate. Because the core curriculum specifications are guidance, 
consideration and issuance of updated specifications does not require 
notice and comment in a rulemaking proceeding.
2. Testing of Medical Examiners
    Certification Testing Intervals. Some commenters suggested 
different intervals for such testing. FMCSA proposed a requirement that 
MEs pass the ME certification test every 6 years in order to remain 
listed on the National Registry.
    FMCSA Response: FMCSA modifies the requirement for MEs already on 
the registry to pass the certification test again before 10 years 
instead of before 6 years to demonstrate knowledge of

[[Page 24113]]

changes and retention of previous knowledge and application. This 
period was chosen as there are varying lengths of times utilized by 
medical and healthcare boards to issue board certifications. FMCSA 
chose 10 years because it is not as burdensome on the medical examiner, 
but, in FMCSA's judgment, it is a short-enough period to verify MEs are 
knowledgeable about any changes to our physical qualifications 
standards and guidance. MEs will also be kept knowledgeable by 
completing refresher training every 5 years, and receiving updates from 
FMCSA by email and Web site postings.
3. Accreditation of National Registry Program
    FMCSA asked for comment on its consideration of obtaining 
accreditation of the components of the National Registry Program that 
test and certify MEs for listing on the National Registry, in order to 
demonstrate the robustness of its Program. This accreditation was not 
the same as the accreditation that was proposed to be required for 
training.
    Several commenters commented regarding the process of obtaining 
National Commission of Certifying Agencies (NCCA) accreditation of the 
certification component of the National Registry Program. ATA expressed 
concern that the accreditation process might cause delay or increase 
program costs. Calling accreditation time-consuming, burdensome, and 
costly, ATA said it would oppose accreditation of the ME certification 
program if the process delayed implementation of the National Registry. 
Instead, ATA recommended that we either certify the program through a 
periodic program evaluation and audits conducted by a designated 
oversight authority, or certify the program using a third-party 
certifying body.
    FMCSA Response: The Agency agrees that accreditation of the 
National Registry certification component could be expensive and delay 
implementation of the program. As stated in the NPRM, FMCSA proposed 
accrediting the testing and certification components of the National 
Registry Program using the accreditation standards of the NCCA, and is 
considering the costs and benefits of applying for accreditation for 
these components (which are administered by the Agency). A new 
certification program (one that has not previously received 
accreditation by the NCCA), may apply for accreditation either after 1 
year of administration of the certification test or when at least 500 
candidates have been assessed with that test instrument, whichever 
comes first. FMCSA will conduct program evaluations which are subject 
to internal and external audits, as well as Congressional oversight.
4. Public Participation in Development of Components
    Advocates said FMCSA failed to provide the key features of the 
preferred Public-Private Partnership approach for evaluation through 
notice and comment. Advocates contended that the Agency should publish 
a supplementary notice of proposed rulemaking (SNPRM) with details of 
the major features to allow for public review and comment. The features 
Advocates believes are not covered are the core curriculum provided for 
training companies to use, the criteria to qualify private 
organizations to conduct training and testing, and the reason for 
choosing the NCCA as the accreditation organization for the program. 
Advocates asserts further that another feature of the proposal that 
``must be exposed to public comment'' is the specific content of the 
test that would be administered to MEs.
    FMCSA Response: FMCSA has determined that it is unnecessary to 
accept Advocate's view that an SNPRM is either required or appropriate. 
However, the Agency has taken steps to make certain components of the 
National Registry program available for public comment before their 
implementation.
    FMCSA has determined that the guidance for the core curriculum 
specifications and other similar documents implementing the National 
Registry program, such as information for testing providers, does not 
have to be a subject to a notice and comment rulemaking. The guidance 
for the core curriculum specifications will meet the minimum 
requirements of 49 CFR 390.105(b), but will not establish a ``binding 
norm'' for MEs for compliance with that provision. American Hospital 
Ass'n v. Bowen, 834 F.2d 1037, 1046 (D.C. Cir., 1987). Organizations 
that will provide the training must have the flexibility to develop a 
particular training curriculum suitable for the type of medical 
professionals who intend to be listed on the National Registry. This is 
especially important because, as explained above in Section IV.B.1, 
FMCSA's regulations will continue to allow several different types of 
medical professionals, with a wide range of different backgrounds, 
knowledge, and skills, to act as MEs. This approach is entirely 
consistent with the authority granted to FMCSA to ``develop, as 
appropriate, specific courses and materials for medical examiners'' 49 
U.S.C. 31149(c)(1)(D) (emphasis added). In view of the nature of the 
training that needs to be provided to applicants for certification and 
listing on the National Registry, and the broad discretionary authority 
delegated to the Agency to implement the training component, FMCSA has 
determined that it is appropriate to issue guidance providing the core 
curriculum specifications for development of training by the various 
training providers.
    Moreover, there are criteria for determining which organizations 
would be deemed acceptable for conducting the training. The 
requirements of 49 CFR 390.105 that the Agency proposed in the NPRM set 
out the criteria that candidates for certification and listing on the 
National Registry must use in selecting an organization to provide 
their training. Those criteria were thus available for public comment. 
FMCSA has responded to those comments (including substantive comments 
by Advocates) in Section IV.C.1 above.
    Finally, MEs seeking to be listed on the National Registry will 
need to successfully complete a test administered in accordance with 49 
CFR 390.103 and 390.107. Like the core curriculum specifications, the 
specific content of the test will be based on current FMCSA regulations 
and guidelines on the Medical Examination Report applicable at the time 
the test is administered. As those underlying regulations and 
guidelines are updated, both the core curriculum specifications and the 
certification test will be modified accordingly.
    The Agency has added a requirement to the final rule (49 CFR 
390.107(d)) to make it clear that any testing organization 
administering the test must use only the test obtained from FMCSA. This 
requirement was stated in the preamble to the NPRM (73 FR at 73133).
5. Records and Recordkeeping
    Retention of Driver Examination Records. The NPRM proposed 
implementation of the SAFETEA-LU requirement that MEs electronically 
transmit to the FMCSA Chief Medical Examiner on a monthly basis the 
name of the CMV driver and a numerical identifier for any completed 
Medical Examination Report required under 49 CFR 391.43 (49 U.S.C. 
31149(c)(1)(E)). Additionally, the proposed rule would require MEs to 
retain for 3 years the Medical Examination Report for each examination 
performed and the medical examiner's certificate, if the ME certified 
the driver as physically qualified. It would also require MEs to 
provide copies of specified Medical Examination Reports and medical

[[Page 24114]]

examiner's certificates to FMCSA or to authorized Federal, State, and 
local enforcement agency personnel, within 48 hours of the request, in 
order to allow for investigation of errors and improper certification 
of CMV drivers (49 U.S.C. 31149(c)(2)).
    ACOEM, AAOHN, and an occupational medicine consulting firm, 
OccuMedix, Inc., claimed that MEs should be required to retain driver 
examination records for longer than 3 years to allow MEs to check their 
own records or the records of other MEs so that medical conditions 
would not be overlooked. The commenters noted that some drivers may use 
different MEs from year to year or may enter or leave the driver pool, 
so records should be maintained for 6 or 7 years and reviewed if 
questions arise.
    FMCSA Response: FMCSA proposed a minimum time of 3 years for 
retention of driver examination records because a driver is certified 
for a period of 2 years or less, and an additional year will allow 
FMCSA time to request driver examination records from MEs to assess ME 
performance by determining whether the ME completed the medical 
examination report accurately and did not certify a driver in error. 
Also, MEs are still subject to any State laws requiring medical records 
to be retained for longer than 3 years. Therefore, FMCSA will retain 
the requirement for MEs to keep the Medical Examination Report and the 
medical examiner's certificate for 3 years and retains the words ``at 
least'' from the Med. Cert./CDL rule to clarify that this is a minimum.
    Privacy of Information. Transportation Safety Services, a 
consulting firm, stated that Federal government databases established 
to monitor medical information cannot be adequately protected from 
unauthorized access. AAOHN, however, suggested that a standardized 
electronic database with appropriate safeguards is imperative for the 
confidentiality of personal health information and compliance with 
Health Insurance Portability and Accountability Act (HIPAA) 
regulations. Dart Transit Company encouraged us to address the question 
of possible conflicts with HIPAA that would be encountered in the 
industry's attempt to comply with the rule.
    FMCSA Response: Pursuant to 49 CFR 391.43(g), as revised by this 
final rule, each month MEs will be required to transmit on Form MCS-
5850 the results of every physical examination performed on a CMV 
driver and the information from each medical examination certificate 
issued to a CMV driver. This form indicates whether or not the driver 
examined was issued a medical certificate. This information is 
necessary to satisfy the requirements of 49 U.S.C. 31149(c)(1)(E). The 
form does not contain any personal health information about the driver. 
It does include information identifying each driver examined such as 
driver's name and driver's license information.
    If the Agency should find it appropriate in conducting any review 
of the performance of MEs on the National Registry, as provided by 49 
U.S.C. 31149(c)(1)(C) and (F), to obtain copies of the Medical 
Examination Reports and any supporting medical records for CMV drivers 
examined, it will follow the applicable policies and procedures to 
ensure the security and privacy of the personal health information 
about the drivers contained therein. FMCSA will also follow similar 
procedures in conducting any investigation into whether or not a CMV 
driver is or should be physically qualified to operate a CMV. 
Therefore, we are requiring submission of medical records through a 
secure Web application for which each certified ME will have a 
password-protected account. FMCSA will implement policies and 
procedures to reasonably limit the uses and disclosures of Protected 
Health Information (PHI). The Privacy Impact Assessment (PIA) 
supporting the final rule gives a full and complete explanation of 
FMCSA practices for protecting Personally Identifiable Information 
(PII) in general and specifically in relation to this rule. The PIA is 
available for review in the docket.
    On the other hand, HIPAA privacy regulations do not apply to the 
transmission of PHI to FMCSA because the Agency does not provide 
services on behalf of the ME, and therefore does not qualify as a 
business associate. The definition of a business associate requires 
more than receipt of PHI. As stated in 45 CFR 160.103, to qualify as a 
business associate the entity or person must perform a function or 
activity involving the use or disclosure of individually identifiable 
health information on behalf of such covered entity or of an organized 
health care arrangement. FMCSA is not providing services on behalf of a 
covered entity or in association with an organized health care 
arrangement. In this case, FMCSA is not performing services for the ME, 
but for the public by ensuring the safe performance of commercial 
vehicle drivers. FMCSA will monitor the performance of MEs in order to 
ensure they effectively determine whether CMV drivers are safe to drive 
in interstate commerce.
    FMCSA disagrees that there are possible conflicts with HIPAA that 
would be encountered by employers (or the MEs for that matter) in 
complying with the final rule. The Agency did not propose and is not 
making any changes in the existing regulations governing the physical 
qualifications of drivers and the responsibilities of employers to 
ensure compliance with those requirements, with the exception of the 
requirement for employers to verify that the ME is listed on the 
National Registry. The employer may validate the National Registry 
Number from the medical examiner's certificate or State driver record, 
without the need to access any of the driver's personal health 
information.
    Public Web site. We indicated in the preamble to the proposed rule 
that information about the National Registry Program would be available 
through a public Web site, so that drivers and employers could find the 
names and addresses of nearby MEs listed on the National Registry. 
Several commenters described other information pertaining to the ME 
that should be provided as well. A chiropractor and Dart Transit 
Company suggested that the Web site should also include information 
about parking, hours, and directions. Schneider National, Inc. 
mentioned that the ME's State license number, National Registry Number, 
and certification expiration date should be posted. Schneider National, 
ACOEM, and OccuMedix expressed that the Web site and email 
notifications to MEs could be used for informational purposes.
    Wynne Transport Service, Inc. (Wynne), California, and AAOHN noted 
that the National Registry itself must be updated frequently so drivers 
and motor carriers always have access to the most current ME 
information. Wynne asked whether the ME's unique identifier will be 
recognizable as valid. OOIDA noted that although we envision a resource 
center with a toll-free telephone number, it is not clear what 
information will be available by telephone and whether the Resource 
Center would be staffed by knowledgeable people who can answer a 
variety of physical examination-related questions. California urged us 
to ensure that the toll-free telephone number is staffed during regular 
business hours in the Pacific Time Zone.
    OOIDA also argued that reliance on the Internet posed an obstacle 
because long-haul drivers often spend extended periods of time away 
from home and not all own laptop computers that could be used to 
identify conveniently located MEs over the Internet.

[[Page 24115]]

    FMCSA Response: FMCSA is considering these ideas in the design and 
implementation of the National Registry Web site. FMCSA anticipates the 
National Registry will include the unique National Registry Number and 
the certification date for each ME. Information for MEs who have been 
removed from the National Registry will be shown with the date of 
removal. We anticipate using the public Web site and email 
notifications to MEs for informational updates. Callers to the Resource 
Center will be able to receive assistance in locating an ME on the 
National Registry and will be given access to knowledgeable personnel 
who can answer questions about the commercial driver physical 
examination.
    Access to Driver Examination Records. ATA, Road Ready, Inc., and 
Florida argued for a Web-based electronic data entry and document-
storage system for Medical Examination Reports. Road Ready, a company 
that electronically collects and stores drivers' DOT medical 
examination information for motor carriers, argued that developing and 
maintaining such a system would enhance our ability to effectively 
manage and audit driver files and obtain required medical information. 
Florida said an FMCSA repository of Medical Examination Reports would 
eliminate the need to require and enforce monthly entry of separate 
data.
    AAOHN, Dart Transit Company, ATA, and an individual MD suggested 
that the ME should have access to previous driver physical examination 
records in order to more easily detect disqualifying illnesses not 
reported by the driver.
    FMCSA Response: The Agency acknowledges the potential benefits of a 
comprehensive, searchable Web-based database of Medical Examination 
Reports. This type of system could incorporate automated checks that 
would prevent the erroneous certification of drivers who do not meet 
certification standards and would facilitate the collection of driver 
examination records for monitoring ME performance. However, this rule 
will not require MEs to enter all data into a prescribed on-line 
Medical Examination Report form, because of the administrative burden 
this would place on MEs.
    Medical Examiner's Certificates. The NPRM proposed a change in the 
medical examiner's certificate form to require the ME to record his or 
her unique National Registry Number. The proposed rule would have 
allowed the ME to use existing medical examiner's certificate forms 
(without a box for the National Registry Number) for up to 4 years. 
Iowa opposed the use of obsolete forms.
    FMCSA Response: FMCSA agrees there is no need to delay 
implementation of the updated medical examiner's certificate and has 
made changes to the final rule to require MEs to use the medical 
examiner's certificate with the National Registry Number for all 
examinations on or after a date 24 months after the effective date of 
this final rule. FMCSA has posted the current medical examiner's 
certificate on its public Web site since 2003, so MEs have not had to 
order supplies of paper copies. Therefore the two-year implementation 
date will not impose hardship or waste with regard to availability of 
the current certificate.

D. Costs and Benefits of the National Registry Program

1. Benefits
    FMCSA requested comments on the costs and benefits of the proposed 
rule. The Indiana Statewide Association of Rural Electric Cooperatives 
(ISAREC) questioned the need for and the benefit of the National 
Registry, arguing that it might not be a good, targeted use of Agency 
resources. A private citizen questioned whether any study shows MEs 
make highways safer. Southern Company, a public utility company, 
opposed establishment of a National Registry and suggested instead that 
physicians should be given easy access to on-line directions and 
guidance to use any time.
    In contrast, a chiropractor reported that in the past year, he had 
disqualified drivers who previously had been improperly qualified to 
drive by other MEs or required exemptions for blindness in one eye, 
insulin use, psychological conditions, limb/appendage loss, implanted 
defibrillators, seizure disorders, and cardiovascular disorders. 
California noted a 2005 study that found that 10 percent of Medical 
Examination Reports (long forms) submitted and marked as qualified were 
actually from unqualified drivers, which, to the commenter, indicates 
that MEs misinterpreted the Agency standards.
    The American Chiropractic Association and a comment signed by 147 
chiropractors stated that the National Registry will both improve 
highway safety and reduce the number of erroneous driver 
disqualifications. They agreed that the ME certification program will 
raise the quality and conformity of the CMV driver physical 
examination. California and Iowa expressed similar opinions in stating 
that the training protocol will ensure that MEs are knowledgeable and 
capable of performing these examinations.
    FMCSA Response: FMCSA is required by statute to establish the 
National Registry. As described in the regulatory evaluation, the Large 
Truck Crash Causation Study (LTCCS) data show that approximately 2.2 
percent of crashes involve a crash where the truck driver was assigned 
the critical reason for the crash and the main contributing factor was 
the health or physical condition of the truck driver.\4\ The LTCCS is 
the most comprehensive examination of truck-crash causation conducted 
in the United States. It is clear that driver health is a factor 
contributing to a significant number of crashes. Clearly, there are 
benefits from a program that would improve the screening of drivers, 
keep medically unqualified drivers off the road, and that would, 
therefore, in FMCSA's estimation, prevent 1,219 crashes per year.
---------------------------------------------------------------------------

    \4\ Internal analysis of the LTCCS conducted by Agency data 
analysts. A description of the LTCCS, it's methodology, and the data 
is available at http://ai.fmcsa.dot.gov/ltccs/default.asp.
---------------------------------------------------------------------------

    It will not be possible to evaluate the effectiveness of training 
programs for MEs to be listed in the National Registry until after the 
training programs have been initiated. It is impossible to predict the 
degree to which the training program will improve ME screening of 
drivers. However, comments received from MEs who currently conduct 
driver physical evaluations, and evidence from the field from MEs and 
enforcement personnel indicate that many drivers who do not meet the 
Agency's physical qualification standards are being erroneously 
medically certified. The Agency expects the National Registry Program 
to reduce the number of errors committed by MEs. It will depend upon 
the effectiveness of training and the knowledge that MEs gain about 
Agency standards and guidelines.
    CME programs have received extensive evaluations and have been 
shown to improve medical practitioner knowledge and skills, as well as 
patient outcomes.\5\ A comprehensive review of the effectiveness of CME 
programs sponsored by the U.S. Department of Health and Human Services

[[Page 24116]]

demonstrated that these programs are effective in increasing 
participant knowledge, skills, and clinical practices, among other 
improvements.\6\ The National Registry Program is more rigorous than 
many CME programs because it includes a post-training knowledge 
assessment. Given that other CME programs have been shown to be 
effective, it is reasonable to expect, therefore, that the National 
Registry Program would attain some level of effectiveness.
---------------------------------------------------------------------------

    \5\ Bordage G, Carlin B, Mazmanian PE. ``Continuing medical 
education effect on physician knowledge: Effectiveness of continuing 
medical education: American College of Chest Physicians Evidence-
Based Educational Guidelines.'' Chest. 2009 and Neff JA, Weiner RV, 
Gaskill SP, Smith JA, Weiner M, Brown HP, Prihoda TJ, Newton E. 
``Preliminary Evaluation of Continuing Medical Education-Based 
Versus Clinic-Based Sexually Transmitted Disease Education 
Interventions for Primary Care Practitioners'' Teaching and Learning 
in Medicine. 10(2) 74-82. 1998.
    \6\ Marinopoulos, S, Dorman T, Ratanawongsa N, Wilson LM, Ashar 
BH, Magaziner JL, Miller RG, Thomas PA, Prokopowicz GP, Qayyum R, 
Bass EB. Effectiveness of Continuing Medical Education. Evidence 
Report/Technology Assessment Number 149, Agency for Healthcare 
Research and Quality--U.S. Department of Health and Human Services, 
2007. Available online at: http://www.ahrq.gov/downloads/pub/evidence/pdf/cme/cme.pdf.
---------------------------------------------------------------------------

2. Costs
    We proposed developing the core curriculum specifications and 
administrative requirements for ME training-- referred to as the 
Public-Private Partnership Model. We asked for comment on alternative 
training delivery methods and the ability of accredited training 
programs to adapt their continuing education programs to ensure quality 
and consistency of training.
    We received many comments about the cost of ME training, testing, 
and certification. In 49 CFR 390.105, we require that all ME applicants 
complete training conducted by a private-sector training provider 
(administered by a nationally accredited medical professional 
organization that provides continuing education units). In 49 CFR 
390.103(a)(3), we require that after completing mandatory training, an 
ME applicant must pass our ME certification test. In 49 CFR 390.111, we 
list requirements for continued listing on the National Registry, 
including periodic retraining every 5 years and recertification every 
10 years. We anticipate that FMCSA will provide Web-based, periodic 
retraining at no cost to MEs. We estimate the annual costs of training 
and testing--including lost time to MEs--as varying between $14 million 
and $59 million (undiscounted) during the initial training phase.
    Costs to Medical Examiners. Commenters presented various arguments 
concerning whether we had properly assessed the cost of the rule and 
which stakeholders would pay the cost of ME training and certification. 
Comcar Industries said we had ``significantly understated'' the cost 
impact of this rule on the trucking industry. A private citizen 
questioned whether we had properly evaluated what costs will increase 
after the National Registry is established. ISAREC, OOIDA, Virginia, 
and Wynne said that MEs would pass on cost increases to drivers or 
motor carriers and other employers of drivers. A chiropractor, ATA, the 
National School Transportation Association (NSTA), OOIDA, and Wynne 
agreed that to recover their training investments, MEs in remote areas 
would impose higher physical examination fees over a smaller base of 
drivers. NSTA recommended that to prevent disparate examination fees 
across the country, FMCSA should limit the amount by which MEs can 
increase their physical examination fees to recover the cost of having 
to comply with the National Registry rule.
    FMCSA Response: There will likely be a minimal increase in the cost 
charged by MEs to reflect the cost of becoming certified. In the 
regulatory evaluation, we estimated that becoming certified would cost 
approximately $550 per examiner in out of pocket costs--$440 for 
training and $110 to take the certification test. Fees for driver 
examinations vary, but generally fall in the range of $70-$100, 
assuming no specialized tests are required. As noted by one commenter, 
MEs in lower volume areas may already charge higher fees--up to $170 
per examination. At $170 per examination, an ME would only have to 
conduct 3-4 examinations in order to recoup the out-of-pocket costs of 
certification. At the lower-end price of $70 per examination, an ME 
would need to conduct a minimum of approximately 8 driver examinations 
to recoup the out-of-pocket costs of certification. In addition, many 
occupational health consortia and other organizations offer training on 
the CMV driver physical, and other ME training, free of charge, to 
physicians and other providers in their networks. It is unclear how 
many MEs would have access to these free courses, but at least some 
would bear little or no out-of-pocket costs for obtaining the required 
training.
    The opportunity cost of time for an ME to attend certification 
training and testing was estimated at $83 per hour, and the time 
commitment for certification was estimated at 11.5 hours, for a total 
cost of approximately $954. If an ME took on these costs, approximately 
148 examinations at most would be needed to pay back the investment of 
time required to become certified. The NPRM proposed requiring MEs to 
repeat initial training every 12 years. This final rule eliminates this 
requirement for repeating the initial training but substitutes 
refresher training every 5 years, thereby reducing the cost to MEs for 
maintaining certification.
    At a maximum, an ME would need to conduct approximately 26 
examinations to compensate for the total cost of certification 
including both out-of-pocket costs and indirect costs of the time 
involved. The financial payoff for being able to continue conducting 
these examinations seems sufficient to induce most MEs who currently 
conduct 10 or more driver certifications per year to become certified. 
Based on the revenue generated by the examination, this volume would be 
sufficient to pay back both the value of time spent by an ME in 
training and out-of-pocket expenses in a little over 2 years.
    The initial training required by this certification program is a 
fixed cost--a one-time expense. This is not a marginal cost that is 
incurred with each examination. In competitive markets, the cost of a 
service approaches its marginal cost, as fixed costs are averaged over 
multiple units of production. Given that there are MEs who evaluate 
hundreds of CMV drivers per year, the amount that initial certification 
costs would contribute to the per-unit cost of providing examinations 
would approach zero. We expect these higher volume MEs to set the 
market price for driver examinations. Those MEs who conduct fewer 
examinations would have pressure to match the prevailing price, or most 
drivers would go to an ME who charges a lower fee. We therefore expect 
a minimal increase in the fees charged for these examinations. In 
addition, we expect that the MEs who choose to obtain training and be 
listed on the National Registry will see an increase in the volume of 
commercial driver examinations, because there may be fewer 
professionals eligible to conduct the driver examinations. Greater 
volume should help control cost increases because the cost of training 
will be spread across a greater number of examinations. As a result, a 
smaller price per examination increase would be necessary for MEs to 
recover their costs.
    If training costs are incorporated into higher medical examination 
fees, this would not result in an increase in the total cost of the 
program, although it would result in a pass-through of these costs to 
the industry. If MEs pass some or all of the costs of the training on 
to the industry, the costs passed on would be borne by drivers and 
carriers rather than MEs, but whether these costs are passed on or 
absorbed by MEs would not change the total cost of the program. 
Therefore, the Agency feels it has fully

[[Page 24117]]

accounted for the potential effects of the rule, although we cannot 
predict with a great deal of certainty how much of the associated costs 
would be absorbed by MEs rather than passed on to the industry.
    Finally, the Agency disagrees that we should put a ceiling on the 
fees MEs are allowed to charge for physical examinations. Commenters 
are concerned both that there will be a shortage of MEs and that fees 
will increase. However, the ability to charge a higher fee for driver 
examinations increases the incentive that MEs have to obtain 
certification. Capping the fee too low would exacerbate any shortage in 
MEs, because it would reduce the financial incentive to become 
certified. In the interest of ensuring the broadest geographic coverage 
possible for the National Registry, we do not agree that capping driver 
examination fees would be advisable.
    It must be kept in mind that once this program reaches full 
implementation, all MEs who choose not to participate in this 
certification program will lose all revenue associated with conducting 
driver physical examinations. MEs face the choice of becoming certified 
to retain the current revenue stream they receive from driver 
examinations, or not becoming certified and losing this revenue to 
other professionals who are certified. The Agency believes that, for 
most MEs, preserving this revenue stream will outweigh any costs 
associated with becoming certified.
    Scarcity of Medical Examiners. FMCSA requested comments on whether 
the proposed requirements may deter otherwise qualified MEs from 
performing these types of examinations and on ways to ensure that MEs 
are accessible to drivers in rural areas and areas where the demand for 
driver certification may be low. The Agency also asked for comments on 
additional costs drivers may incur to locate and travel to an ME for 
periodic examinations.
    AAPA, AAOHN, Advocates, California, Virginia, and two individuals 
said that the cost of training and testing would diminish the number of 
physicians and others willing to become MEs. However, a physician with 
the Delaware Department of Health suggested that most physicians would 
find the costs of training and travel, certification, and 
recertification acceptable.
    OOIDA also expressed concern that the burdensome and costly 
administrative obligations for listed MEs will discourage health care 
professionals from providing driver physical examinations. 
Administrative burdens would include the need for a computer system 
that can interface with the Agency and personnel available to provide 
the Medical Examination Reports when requested. California requested 
that MEs be given sufficient notice prior to an onsite inspection and 
sufficient time to comply with a request for information.
    Several commenters discussed the scarcity of MEs in rural areas and 
the resulting costs to CMV drivers. ATA, Arizona, Comcar Industries, 
ISAREC, National Academy of DOT Medical Examiners (NADME), OOIDA, 
Southern Company, Virginia, and Wynne said that a scarcity of MEs would 
burden truck drivers with having to travel long distances for physical 
examinations. ATA commented further that such travel likely would 
result in a loss of wages for the driver and loss of revenue to the 
motor carrier.
    Commenters also argued that scarcity would result in difficulties 
in scheduling physical examinations. Commenters said many drivers will 
experience longer wait times and no walk-in opportunities for physical 
examinations. According to NSTA, difficulties in scheduling physical 
examinations could impede school bus service because newly hired 
drivers may be unable to receive physical examinations before the start 
of school.
    Several commenters suggested actions we might take to avoid a 
scarcity of MEs. These suggestions included offering financial 
incentives to secure a local ME, permitting physical examinations by 
CMV drivers' family doctors, though not certified, having motor 
carriers take responsibility for finding physicians in their areas who 
are willing to become MEs, and extending the rule's implementation date 
if there are not sufficient numbers of MEs.
    FMCSA Response: There are 3,140 counties or county-equivalent 
administrative units in the United States, according to the U.S. Census 
Bureau. Assuming the Agency reaches its goal of certifying 40,000 MEs, 
there would certainly be a sufficient number of certified MEs to 
provide broad geographic coverage. Even half that number of certified 
MEs would be sufficient to provide comprehensive national coverage. It 
is unlikely that MEs would be evenly distributed throughout the Nation, 
but coverage should be sufficient to ensure reasonably convenient 
access in all but the most remote areas of the Nation. Lack of access 
to a certified ME would be likely to affect only a small number of 
drivers, especially considering that many of these drivers from rural 
areas would be delivering loads on a regular basis to larger towns and 
cities and, thus, have access to the broader ME populations in such 
areas. Given the mobile nature of the CMV driver occupation and the 
number of MEs we anticipate to join the National Registry, we do not 
believe that access to certified MEs will be an issue once the Registry 
is fully populated. In addition, we anticipate that the searchable 
National Registry may make it easier for drivers to find health care 
professionals who are qualified to conduct the driver physical 
certification examination. It is possible that in some areas where MEs 
are in short supply, such as rural areas, driver examination costs 
might increase, but the increase is not a certainty and is not likely 
to be large. Also, travel costs to drivers might increase due to 
drivers traveling further to find MEs.
    Mode of Training and Testing. We proposed developing the core 
curriculum specifications and administrative requirements for ME 
training, which we would provide to private-sector training 
organizations for developing course content. We mentioned that training 
delivery could vary among providers and include self-paced, on-line 
training; the traditional classroom model; or a blended format. We also 
envisioned private-sector organizations administering a proctored and 
secure certification test, with the ME applicant traveling to the test 
center. We asked for comment on alternative training and testing 
delivery methods and how FMCSA could offer training directly to MEs in 
a cost-effective manner.
    ATA, Comcar Industries, ISAREC, MRB, NADME, NRCME Training Systems, 
OOIDA, and Schneider National endorsed on-line training as efficient 
and cost-effective. Schneider National also endorsed other cost-
efficient technologies like video-conferencing, along with traditional 
classroom training.
    A chiropractor said that live Web conferencing had the benefit of 
reducing costs and allowing conversation between a trainer and course 
attendees.
    Delaware noted that some physicians favored an initial on-line Web-
based product designed to educate new examiners, followed by on-site 
lectures and then initial testing, leading to qualification. However, 
OccuMedix stated that in-person, classroom training was optimal for 
initial certification since discussing case studies and in-person 
interacting with other ME candidates and faculty would be extremely 
beneficial.
    Several of the commenters, including ATA, supported on-line 
testing. ATA

[[Page 24118]]

said that on-line testing should be the preferred method of 
administration of the test to reduce costs. One commenter, a 
chiropractor, said that FMCSA should offer the test on its Web site.
    FMCSA Response: The Agency agrees with comments that on-line 
training would reduce the cost associated with training. This rule does 
not preclude on-line training as a viable training, or the other 
suggested training formats, delivery methods. Allowing flexibility in 
alternative training delivery methods is one of the primary benefits of 
the Public-Private Partnership Model. While some organizations may 
charge for this training, others (larger hospital systems, occupational 
health consortiums, professional associations, etc.) may offer training 
that is free of charge to group members. The Agency is aware of several 
ME training programs that are offered free to members of particular 
organizations. It is therefore likely that under the Public-Private 
Partnership Model a percentage of MEs would be able to obtain on-line 
training with no out-of-pocket costs or travel costs. At present, the 
Agency cannot estimate with any degree of certainty the number of MEs 
who might take advantage of on-line training, so we leave the travel 
costs estimates at the NPRM stage unchanged for the Public-Private 
Partnership Model. It is expected, however, that on-line training will 
reduce travel costs associated with this model.
    The Agency agrees with commenters that allowing on-line testing 
will increase accessibility and decrease costs. This rule allows for 
secure online testing to be offered by testing organizations as an 
alternative or additional option to in-person testing. It requires 
online testing to be subject to specific security and privacy 
requirements due to the nature of the test and the need for 
authentication and security of the test. The Agency expects that, just 
as with on-line training, allowing for the increased flexibility 
provided by secure on-line testing in the final rule will reduce costs 
for MEs without adversely impacting the ability of the Agency to verify 
the qualifications of the MEs on the National Registry or compromising 
safety.
    Estimates of Frequency of Driver Examinations. The NPRM estimated 
the number of MEs who would need to be certified by estimating that 3 
million driver examinations are performed on interstate CMV drivers per 
year. All CMV drivers must be certified at least every 2 years, and 
some drivers are certified more frequently. We specifically requested 
comments on how frequently drivers are examined more often than every 2 
years. A chiropractor said that in 2008, his practice issued 41 percent 
of CMV medical certificates for less than 2 years. Schneider National 
said that of the approximately 650 medical examinations it performed 
each month, it issued about 50 percent of the medical certifications 
for less than 2 years. Comcar Industries reported that 39 percent of 
its drivers receive medical certificates for less than 2 years.
    NSTA said FMCSA underestimated the number of drivers by not 
including intrastate drivers, because all States but two adopt the 
FMCSRs for intrastate drivers. NSTA also said that most States require 
school bus drivers to have a physical examination annually.
    FMCSA Response: The Agency agrees that, given the estimates of the 
number of drivers who require certification more than once every two 
years, it is likely that more than 3 million drivers would be certified 
in a given year. However, we do not believe that this increase in the 
estimated number of drivers needing medical examinations per year is 
great enough to require more registered MEs than the 40,000 we used as 
the baseline for calculating the costs of the program. The increase in 
medical certifications does not, therefore, impact our estimate of the 
direct costs of the rule, which are based on the cost of training, 
certifying, and registering a given number of MEs. This rule does not 
change the regulations and guidelines that MEs use to determine how 
long drivers are certified.
    In regard to counting intrastate-only driver examinations, FMCSA 
acknowledges the potential impact of certifying intrastate drivers and 
exempted school bus drivers on the number of driver examinations MEs on 
the National Registry will perform. However, for the purposes of 
estimating the costs of the program, as required by 49 U.S.C. 
31136(c)(2)(A) and Executive Order 12866 (see Section VI below), we 
considered the direct impact of the rule, which is limited to 
interstate drivers.

E. Implementation of National Registry Program

1. Phased-In Implementation
    The NPRM proposed phasing in the requirement for using MEs listed 
on the National Registry, with phase one requiring compliance for motor 
carriers with more than 50 drivers (so-called large carriers), and 
phase two requiring compliance for drivers not covered in phase one. 
Phase one would have begun 2 years after the rule's effective date; 
phase two would have begun 3 years after that date.
    The majority of commenters to this section opposed the 
implementation schedule, while some offered alternatives to the 
proposed approach. ATA claimed that it is unfair to require drivers of 
large motor carriers to bear the costs of compliance for one year 
longer than drivers of smaller motor carriers. A joint comment from ABA 
and BISC voiced concern that the phased-in implementation schedule 
could result in only a limited number of MEs obtaining certification, 
which would make it difficult for drivers to locate an ME. The 
commenter recommended a single two-year implementation period, which it 
believed would provide adequate time for MEs to obtain certification. 
Comcar Industries added that the proposed implementation schedule 
demonstrates a lack of understanding of the transportation industry and 
is not realistic or reasonable. The commenter stated that we did not 
provide any valid reasons for proposing the approach and are 
unjustified in forcing the motor carriers to be responsible for 
implementation by requiring them to search for an ME when one may not 
be available in certain areas. Both ATA and Comcar Industries urged us 
to ensure that the National Registry is sufficiently populated 
throughout the country before implementing the proposed requirements. 
NSTA said that the proposed phase-in schedule would cause hardships for 
rural school bus operations, because many school bus companies are not 
located in areas where there is easy access to MEs. NSTA suggested that 
we phase in the National Registry Program by either population density 
or by facility size from which buses are dispatched rather than by 
company size.
    OOIDA claimed that the schedule was developed on flawed Agency 
assumptions. First, it stated that drivers employed by large carriers, 
just as their smaller independent counterparts, have the same 
likelihood of living in rural areas where MEs will not be concentrated. 
The commenter then suggested that there will always be a shortage of 
MEs in rural areas or other areas where the demand for examinations is 
low.
    Dart Transit Company opposed the implementation schedule, 
suggesting that to actually improve highway safety, all motor carriers 
should be required to comply at the same time. California also 
recommended that the proposed requirements should be applicable to all 
participants on the effective date of the final rule. It noted that a 
driver could avoid compliance by claiming employment by a ``small'' 
carrier; a

[[Page 24119]]

claim that the State SDLAs would be unable to verify.
    Schneider National and a chiropractor suggested a ``geographical'' 
or ``regional'' approach to implementation. Schneider National claimed 
that ensuring there are a sufficient number of MEs in a particular 
region will reduce the traveling burden on a driver to obtain his or 
her examination. However, the chiropractor noted a potential drawback 
to implementing this geographic or regional approach, suggesting that 
MEs and drivers may not receive adequate notice that they are in a 
regional area where they must follow the new requirements.
    Finally, Delaware suggested that FMCSA create a matrix that would 
allow a State to determine by date when they must only accept medical 
certificates issued by certified examiners.
    FMCSA Response: The Agency concurs with comments that the phase-in 
schedule would pose some issues, such as limiting the number of MEs in 
the first year. Additionally, FMCSA does not believe this would reflect 
the reality of the industry's distribution of drivers. In response, the 
Agency has eliminated the phase-in schedule from the final rule. The 
final rule will require that all drivers requiring certification under 
49 CFR part 391, subpart E must be certified by an ME on the National 
Registry beginning 2 years after the effective date of this rule, 
regardless of the size of the employing carrier. The cost estimates 
based on the original phase-in period have been adjusted to account for 
this change in the accompanying regulatory evaluation.
2. Reviews of Performance of Medical Examiners
    The NPRM proposed implementation of the SAFETEA-LU requirement that 
MEs electronically transmit to the FMCSA Chief Medical Examiner on a 
monthly basis the name of the CMV driver and a numerical identifier for 
any completed Medical Examination Report required under 49 CFR 391.43 
(49 U.S.C. 31149(c)(1)(E)). OccuMedix, Dart Transit Company, and 
Advocates supported implementing a quality assurance program with a 
detailed removal process for non-compliant MEs. Advocates asserted we 
must ensure MEs fulfill the requirement to provide information about 
completed medical examinations on a regular basis. The commenter 
described our proposed oversight as vestigial and hit-or-miss, 
expressing concern that we did not detail the approach to ensure that 
MEs actually are properly administering the physical examination.
    Transportation Safety Services recommended that we address the 
problem area of many physician errors resulting from the physician's 
support staff incorrectly completing the paperwork. California 
requested that we provide a mechanism and authorize SDLAs to 
immediately report to FMCSA any health care professionals not on the 
National Registry who are performing driver examinations, and any MEs 
engaged in fraudulent or illegal activity.
    Finally, a certified MRO recommended that we incorporate the 
Federal Transit Administration's approach for ``Best Practices'' awards 
for MEs that set model examples.
    FMCSA Response: FMCSA intends to ensure that MEs comply with the 
requirement in this rule to electronically submit a completed MCSA-
5850, CMV Driver Medical Examination Results, form monthly to FMCSA. 
The details of FMCSA's compliance and monitoring program will relate to 
FMCSA's future implementation of the provision of SAFETEA-LU (49 U.S.C. 
31149(c)(2)), and therefore will not be part of this rulemaking.
    FMCSA acknowledges that expanding the National Registry to include 
training and certification of auxiliary staff, whether health care 
professionals or administrative personnel, might be beneficial. 
However, in order to minimize the cost burden to the public, the Agency 
will not include these requirements in the final rule. MEs are reminded 
that they are responsible for reviewing and correcting any errors in 
the driver examination documentation.
    States, other stakeholders, or the public may direct complaints 
about the performance of MEs as follows: If health care professionals 
not listed in the National Registry are known to be performing required 
driver examinations on or after 24 months from the effective date, or 
if MEs are believed to be engaged in fraudulent or illegal activity, 
FMCSA should be notified by: (1) Writing the Office of Carrier, Driver 
and Vehicle Safety Standards, FMCSA, 1200 New Jersey Avenue SE., 
Washington, DC 20590; (2) sending an email to <a href="/cdn-cgi/l/email-protection#4f2c20213b2e2c3b213d2c222a0f2b203b61282039"><span class="__cf_email__" data-cfemail="25464a4b514446514b5746484065414a510b424a53">[email protected]</span></a>; or 
(3) calling an FMCSA-designated toll-free telephone number listed on 
the National Registry Web site.
    Finally, FMCSA does not anticipate creating a ``best practice 
award'' for MEs as part of the initial implementation of the National 
Registry Program. FMCSA may revisit this issue after the program has 
been fully implemented.

F. Issues Outside of the Scope of the Rulemaking

    A number of respondents submitted comments on topics that were 
either outside the scope of what was proposed in the NPRM or were based 
on a misunderstanding of what the Agency proposed in this rulemaking. 
Many of these issues concern how FMCSA could prevent driver fraud in 
the medical certification process, track commercial driver 
examinations, require SDLAs to review Medical Examination Reports as 
part of the CDL, or establish specific medical examination 
requirements.
    FMCSA Response: FMCSA acknowledges the policy concerns of the 
commenters. However, as stated in the NPRM, the legal and policy 
direction of this rulemaking is limited to requiring drivers to be 
examined by MEs that have been trained and certified to effectively 
determine whether they meet FMCSA physical qualification standards 
under 49 CFR part 391. FMCSA continues to believe this rulemaking 
represents a major step in improving oversight capabilities by 
establishing the National Registry, ensuring that MEs are trained and 
qualified to perform driver examinations, removing MEs who do not meet 
program requirements from the National Registry, and requiring carriers 
and drivers to use only MEs on the National Registry.
    The driver certification issues addressed by this rule complement 
the driver licensing issues that were addressed by the rule titled 
``Medical Certification Requirements as Part of the CDL'' (December 1, 
2008, 73 FR 73096), which established a system for interstate CDL 
drivers to provide medical certification status information to the 
SDLAs by providing the ME's certificates. It also required the SDLA to 
post that medical certification status information into the CDLIS 
driver record for licensing, enforcement, and employment decisions. The 
2008 rule represented a significant first step in improving the 
oversight capabilities of medical certification status information for 
non-excepted, interstate CDL drivers.
    Neither this final rule nor the 2008 rule are intended to address 
fraud perpetrated by drivers regarding their medical certification or 
to update SDLAs on disqualified drivers. While we acknowledge that 
these are important issues, these comments are outside the scope of 
this rule. However, as previously stated, FMCSA anticipates initiating 
a future rulemaking to expand medical certification information 
exchange with the States.
    A third step toward improving oversight of the driver qualification

[[Page 24120]]

process is the review and revision, as necessary, of the driver 
physical qualification standards. The Agency, with the advice of its 
Medical Review Board and its newly appointed Chief Medical Examiner, 
has begun the process, which will take several years to complete. 
Changes to the standards and guidelines for driver qualification are 
beyond the scope of this rulemaking.

G. Comments on the Modified Information Collection

    FMCSA published a request for public comments concerning a 
modification of the proposed information collection request under 
consideration on March 16, 2011 (76 FR 14366). FMCSA proposed a new 
information collection burden related to a requirement for employers of 
CMV drivers to verify the National Registry Number of the ME for each 
driver required to be examined by an ME on the National Registry, and 
to place a note relating to verification in the driver qualification 
file.
    Comment on the information collection burden. One commenter, OOIDA, 
noted that the information collection burden would affect a large 
number of motor carriers and add to the already existing burden of 
recordkeeping obligations for both small motor carriers and owner-
operators.
    FMCSA Response: The Agency's regulations already require small 
carriers and owner-operators to comply with all of the regulations 
applicable to both carriers and drivers (see 49 CFR 390.11). The 
additional information collection burden from this verification 
requirement on an individual employer is minimal, amounting to a few 
minutes per driver. The Agency adopts the requirement for employers to 
verify the ME's National Registry Number for each of its drivers, as 
proposed.
    Comments beyond the scope of the information collection notice. 
Multiple commenters, including several State organizations, stated that 
requiring employers to verify the National Registry Number would be 
redundant and unnecessary, because they believed the SDLAs would or 
should verify the qualifications of the MEs as part of the process for 
posting medical status information on CDLIS. FMCSA is not requiring 
SDLAs to verify the National Registry Number. CDLIS only contains this 
information for CDL holders, and, as employers will be required to 
verify the ME numbers for both CDL holders and non-CDL holders, this 
would not be sufficient.
    Several commenters, including AHAS, ATA, and OOIDA, noted that the 
Agency's proposal would not substantially deter driver fraud, and 
suggested alternate ways of addressing fraud. Several of these 
suggestions would, if adopted, increase the burden of this rulemaking 
on the employer or require additional public notice and comment 
rulemaking.
    FMCSA Response: This rulemaking is one of several incremental steps 
towards a comprehensive medical certification oversight process that 
includes the ME, driver, and motor carrier. FMCSA believes that 
employer verification of an ME National Registry Number is one of 
several steps toward improving the driver medical certification 
process. Eliminating opportunities for fraud from the process is one of 
the goals for the medical certification oversight process. Though the 
Agency is unable to implement these various suggestions for fraud 
reduction in this final rule, they have been noted, and may be 
considered in a future rulemaking.

V. Section-by-Section Explanation of Changes From the NPRM

Part 350 Commercial Motor Carrier Safety Assistance Program

    Section 350.341. FMCSA is revising this section so that States that 
receive MCSAP grants and that have in effect variances for physical 
qualification requirements for drivers operating CMVs in intrastate 
commerce will have the option of not establishing a separate registry 
of medical examiners trained and qualified to apply those standards. 
Without this option, in order to comply with the general requirement of 
compatibility established by 49 U.S.C. 31102 and 49 CFR 350.201(a), 
such States would have the burden of establishing and administering a 
separate registry for such examiners applying different standards to 
intrastate-only CMV drivers. FMCSA does not believe it is necessary to 
place that burden on the States that may have such variances in effect. 
A State with variances in effect under 350.341(h)(1) and (2) that 
chooses to set up a separate registry of examiners qualified to apply 
those variances to intrastate drivers will not be allowed to use MCSAP 
funds for that purpose. Such use of MCSAP grant funds would not be 
consistent with the overall purpose of establishing a uniform standard 
for all CMV drivers nationwide.

Part 383 Medical Recordkeeping

    Section 383.73(o)(1)(iii)(E). FMCSA revises the list of items that 
the State must post to the CDLIS driver record by deleting the phrase 
``(if the National Registry of Medical Examiners, mandated by 49 U.S.C. 
31149(d), requires one)'' after ``Medical examiner's National Registry 
identification number,'' because the National Registry Program 
implementation will indeed require such a number for certified MEs.

Part 390 Definitions

    Section 390.5. The NPRM contained a phase-in schedule for 
implementation. In the final rule, however, the proposed phase-in has 
been eliminated and the revised definition applies beginning 2 years 
after the effective date of the final rule. Thereafter, every medical 
examination under subpart E of part 391 must be conducted by an ME 
listed on the National Registry. FMCSA revises the proposed definition 
of medical examiner to reflect that there is no phase-in schedule.

Subpart D of Part 390--National Registry of Certified Medical Examiners

    Section 390.103. FMCSA adds an introductory phrase to paragraph (b) 
to clarify that it applies to a person who has ME certification. FMCSA 
adopts paragraph (a)(1) as proposed. We require the applicant for 
medical certification to have a legally permitted scope of practice 
(i.e., license, certification, or registration) that allows him or her 
to perform independently the requirements of Sec.  391.43. FMCSA 
eliminates the reference to Appendix A from paragraph (a)(3) because 
Appendix A was not adopted in the final rule. As originally proposed in 
the NPRM, Appendix A specified contact information and required 
statements ME candidates would have to submit to testing organizations 
before the testing organizations would permit them to take the ME test. 
In paragraph (a)(3), FMCSA also prohibits an applicant who does not 
pass the certification test from retaking the test within 30 days, and 
requires an applicant to take the certification test no more than three 
years after completing the training.
    Section 390.105. FMCSA deletes the provision on compliance with 
section 508 of the Rehabilitation Act for two reasons. First, this 
section only applies to Federal departments and agencies that provide 
electronic and information technology to their employees, or who use 
such technology to provide information and services to members of the 
public. Second, it is unnecessary in light of the provisions of section 
504 of the Rehabilitation Act and Department regulations in 49 CFR part 
28.
    Section 390.107. FMCSA makes changes to proposed Sec.  390.107 
Medical examiner certification testing. The Agency adds a new paragraph 
(b) (and changes the designation of the subsequent paragraphs as 
appropriate),

[[Page 24121]]

to require additional security and privacy procedures for those testing 
organizations who intend to administer the test on-line as an 
alternative or additional option to in-person testing. FMCSA also 
eliminates the reference to Appendix A of this part. The NPRM had 
proposed an Appendix A, but FMCSA did not adopt it in the final rule. A 
provision is added to make it clear that the test to be administered is 
the currently authorized test developed and furnished by FMCSA.
    Section 390.109. FMCSA adopts Sec.  390.109 Issuance of the FMCSA 
medical examiner certification credential, as proposed, except to 
specify compliance with the requirements of Sec.  390.103(a) or (b) 
rather than compliance with the requirements of Sec. Sec.  390.103-
390.107.
    Section 390.111. Although proposed paragraph (a)(5)(ii) would have 
required a certified ME to retake the initial training in alternating 
6-year periods, this requirement was not adopted. Instead, the ME will 
be required to complete periodic training as specified by FMCSA every 5 
years. The ME will still be required to take the certification test 
every 10 years in order to retain the certification.
    Section 390.113. The final rule adds a general statement of the 
grounds for removal of an ME, based on 49 U.S.C. 31149.
    Section 390.115. In the NPRM, this section described procedures for 
removal from the National Registry. Proposed paragraph (d) addressed 
requests for administrative review after an ME has been removed from 
the National Registry, but did not describe what would happen if the 
administrative review found that the removal of the ME was not valid. 
To correct this oversight, FMCSA adds text to paragraph (d)(2), which 
requires FMCSA to reinstate the ME and reissue a certification 
credential. The reinstated ME essentially must follow the requirements 
of Sec.  390.111(a), which describes what the ME must do to continue to 
be listed on the National Registry. Similarly, FMCSA adds the same text 
to paragraph (f), which describes applying for reinstatement on the 
National Registry after voluntary or involuntary removal. In addition 
to requiring a person who was involuntarily removed to complete 
corrective actions described in the notice of proposed removal, the 
rule requires reinstated MEs to follow the requirements of Sec.  
390.111(a).
    Proposed paragraph (g) would have required that if a person is 
removed from the National Registry under paragraph (c) or (e), or a 
removal is affirmed under paragraph (d), then that person's listing is 
removed and the certification credential is no longer valid. FMCSA 
deletes the phrase ``or a removal is affirmed under paragraph (d),'' 
because a person who requests administrative review under paragraph (d) 
has already been removed from the National Registry under paragraph (c) 
or (e). That person's listing has been removed and his or her 
certification credential is no longer valid.
    Finally, Director of Medical Programs is updated to Director, 
Office of Carrier, Driver and Vehicle Safety Standards throughout to 
reflect a change in FMCSA's organizational structure.
    Appendix A. FMCSA does not adopt proposed Appendix A to part 390, 
Medical Examiner Application Data Elements. Instead of adopting 
proposed Appendix A, FMCSA will make available on its Web site the 
current minimum data elements that must be included in the application 
for medical examiner certification.

Part 391

    Section 391.23. Amendments to paragraphs (m)(1) and (m)(2)(i)(B) of 
this section require the motor carrier to verify that a driver was 
certified by an ME on the National Registry beginning 2 years after the 
effective date of the rule.
    Section 391.42. The NPRM contained a phase-in schedule for 
implementation. In the final rule, beginning 2 years after the 
effective date of the final rule, this section now requires that every 
medical examination under subpart E of part 391 must be conducted by an 
ME listed on the National Registry. For the reasons explained above in 
Section IV.E.1, FMCSA does not believe a phase-in period is necessary.
    Section 391.43. The NPRM contained several proposed amendments to 
Sec.  391.43, including an addition to the information required on a 
medical examiner's certificate. FMCSA adopts paragraph (a) as proposed 
to specify that, in accordance with the compliance schedule established 
in Sec.  391.42, the medical examination must be performed by an ME 
listed on the National Registry under subpart D of part 390 of this 
chapter.
    Proposed paragraph (g) would have required the ME to complete a 
medical examiner's certificate for drivers found to be physically 
qualified to drive a CMV. In the final rule, the paragraph is modified 
slightly to reflect the wording of the current paragraph, which was 
revised on December 1, 2008 (73 FR 73096) to include providing a copy 
of the medical examiner's certificate to the driver's employer. FMCSA 
adopts the proposed new requirement in paragraph (g)(3) that, once 
every calendar month, the ME must electronically transmit certain 
information to the FMCSA Director, Office of Carrier, Driver and 
Vehicle Safety Standards. (Director of Medical Programs is updated to 
Director, Office of Carrier, Driver and Vehicle Safety Standards to 
reflect a change in FMCSA's organizational structure.) The final rule 
specifies that the information must be provided on Form MCSA-5850 and 
transmitted via a secure FMCSA-designated Web site.
    FMCSA adopts proposed paragraph (h) to revise the medical 
examiner's certificate by adding a field for the ME to enter his or her 
unique National Registry Number. Under the proposed paragraph, MEs 
would have been allowed to use printed certificates they have on hand 
until 4 years after the effective date of the final rule. Because the 
MEs do not need to be listed on the National Registry until 2 years 
after the effective date of the rule, FMCSA believes additional time 
for using up old certificates is unnecessary and the final rule does 
not provide for the use of obsolete printed certificates.
    FMCSA adopts proposed paragraph (i) to specify that the ME must 
retain the original (paper or electronic) completed Medical Examination 
Report and a copy or electronic version of the medical examiner's 
certificate, and make them available, along with related medical 
documentation, to an authorized representative of FMCSA or an 
authorized Federal, State, or local enforcement agency representative, 
within 48 hours of the request. The proposed paragraph would have 
required the records to be retained for 3 years, but the final rule 
retains the Med. Cert./CDL language, which specifies ``at least 3 years 
from the date of the examination.'' Nothing in our 3-year retention 
requirement precludes longer retention which, in fact, may be required 
by States. In the case of an ME whose practice has closed, State law 
will govern the retention of medical records. Some States may require 
the ME's successor to retain drivers' medical records, or in the case 
of a deceased ME, the ME's estate may be responsible for retaining the 
records. Additionally, FMSCA has modified the medical examiner's 
certificate to include additional information.
    Section 391.51. FMCSA amends this section to require the motor 
carrier to place a note in the driver qualification file relating to 
verification of ME listing on the National Registry beginning 2 years 
after the effective date of the final rule.

[[Page 24122]]

VI. Regulatory Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures as Supplemented by Executive Order 
13563

    The FMCSA has determined that this rulemaking action is a 
significant regulatory action under Executive Order 12866, Regulatory 
Planning and Review, as supplemented by Executive Order 13563 (76 FR 
3821, January 18, 2011), and that it is significant under DOT 
regulatory policies and procedures.
    This rule establishes a training, testing, and registration program 
that would certify medical professionals as qualified to conduct 
medical certification examinations of commercial drivers. Current 
regulations require all interstate commercial drivers (with certain 
limited exceptions) to be medically examined by a licensed health care 
provider to determine whether these drivers meet the FMCSA physical 
qualification requirements. All drivers must carry a medical examiner's 
certificate as proof that they have passed this physical qualification 
examination. The MEs who conduct said physical examinations must retain 
copies of the Medical Examination Reports of all drivers they examine. 
The Medical Examination Report lists the specific results of the 
various medical tests used to determine whether a driver meets the 
physical qualification standards set forth in subpart E of part 391 of 
the FMCSRs.
    Before the adoption of this rule, there was no required training 
program for the medical professionals who conduct driver physical 
examinations, although the FMCSRs required MEs to be knowledgeable 
about the regulations (49 CFR 391.43(c)(1)). The former rules required 
that any medical professional licensed by his or her State to conduct 
physical examinations could conduct driver medical certification exams. 
No specific knowledge of the Agency's physical qualification standards 
was required or verified by testing. As a result, some of the medical 
professionals who conduct these examinations may be unfamiliar with 
FMCSA physical qualification standards and how to apply them. These 
professionals may also be 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.
    This rule establishes the National Registry to ensure that all MEs 
who conduct driver medical certifications have been trained in FMCSA 
qualification standards and guidelines. In order 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 the 
Agency's physical qualification standards and guidelines and how to 
apply them to drivers. Upon passing this certification test, and 
meeting the other administrative requirements associated with the 
Program, MEs will be listed on the National Registry. Once this rule is 
fully implemented, only medical certificates issued to drivers by MEs 
on the National Registry will be considered valid by the Agency as 
proof of medical certification.

Alternatives

    The regulatory evaluation that accompanied the NPRM for this rule 
considered three alternatives for implementing this Program. One 
alternative, referred to as the Public-Private Partnership Model, 
involved a partnership between the Agency and various private-sector 
training and testing organizations that currently exist to provide 
continuing professional education and credentialing to medical 
professionals. This Public-Private Partnership Model was the Agency's 
preferred alternative. The majority of public comments to the docket 
during the notice and comment period for the NPRM supported the Public-
Private Partnership Model over the other alternatives considered. This 
final rule implements the Public-Private Partnership Model. Under this 
partnership, the Agency will develop and provide guidance for the core 
curriculum specifications and the certification test and protocols. Any 
interested organization that can meet FMCSA requirements will be 
eligible to deliver training or testing. Training would therefore be 
delivered by private-sector professional associations, health care 
organizations, and other for-profit and non-profit training groups. 
Testing will be delivered by private-sector professional testing 
organizations. After completing one of these accredited training 
programs, passing the certification test, and agreeing to comply with 
FMCSA administrative requirements, MEs will be listed on the National 
Registry, and authorized to conduct CMV driver physical examinations. 
Once the National Registry is fully implemented, only physical 
examinations conducted by MEs on the National Registry will be 
recognized by FMCSA and enforcement personnel as proof of driver 
physical qualification.
    The second alternative considered by the Agency at the NPRM stage 
was based on the Federal Aviation Administration's Aviation Medical 
Examiner program, referred to here as the Government Model. This 
alternative required the Agency to establish its own centralized 
training and testing program. As described in the regulatory evaluation 
accompanying the NPRM, this program would have required MEs to attend 
this Agency-run program and pass a test administered by the Agency. 
Upon completion of the test, an ME would be eligible for listing on the 
National Registry. This program's components are essentially the same 
as the Public-Private Partnership Model, but all training and testing 
would have been conducted by the Agency rather than private-sector 
training and testing programs. This alternative would also have 
required all MEs to travel to the FMCSA facility or other regional 
training sites to receive the FMCSA training. This would have involved 
greater travel expenses for MEs when compared to the Public-Private 
Partnership Model, which has training programs distributed throughout 
the country as well as some vendors who would offer on-line training 
modules. However, this option would have given FMCSA optimal control 
over the training of MEs.
    The third alternative, referred to as the MRO Model, was based on 
the current MRO program requirements set forth in 49 CFR part 40, 
subpart G. The DOT MRO training program grew out of the DOT drug and 
alcohol program, which monitors use of controlled substances and 
alcohol. MROs are trained and certified by accredited training programs 
operated by professional associations in cooperation with DOT. Only 
licensed MDs or DOs are eligible to be MROs. MROs review drug and 
alcohol test results for other safety-sensitive occupations such as 
airline mechanics, train operators, and ship's pilots.
    The existing program specifies that MROs who oversee drug and 
alcohol testing for commercial drivers must attend a training and 
certification program that meets DOT standards. Each of these programs 
maintains its own registry of graduates rather than contributing names 
to a single Federal database. DOT does not administer the training 
curriculum or testing protocols for these programs. Thus, the Agency 
would exert less control over a program based on the MRO model than 
under the other options discussed at the NPRM stage. In addition, MRO 
programs charge more for testing than would likely be charged for 
testing in the

[[Page 24123]]

National Registry program. Long distance travel for the initial 
training and testing would also have been required under this 
alternative.
    As noted, the Agency has chosen to adopt the Public-Private 
Partnership Model at the final rule stage. This alternative was 
estimated to have the lowest cost of the three alternatives considered, 
and would afford the greatest degree of flexibility, convenience, and 
training opportunity to MEs. Moreover, it was supported by the majority 
of comments that mentioned the various alternative models proposed in 
the NPRM. We summarize the estimated costs and benefits of the three 
models below. To a large extent, costs have not changed. However, the 
Agency has decided to drop the phase-in described in the NPRM in which 
drivers who work for carriers who employ 50 or more drivers would be 
required to comply with the rule one year earlier than drivers who work 
for smaller carriers or are owner-operators. The Agency concurs with 
comments received that the phase-in schedule would pose some issues, 
such as limiting the number of MEs in the first year. Additionally, 
FMCSA does not believe the phase-in would reflect the reality of the 
industry's distribution of drivers. Under this final rule, all drivers, 
regardless of the size carrier they work for, are required to obtain 
medical certification from a National Registry-certified ME within 2 
years of the full implementation of the Program. This change has 
advanced the date at which all drivers must be certified by an ME on 
the National Registry, and as a result, a portion of the impacts that 
would be felt by drivers and the industry will be felt earlier than 
would have been the case with the phase-in. Related cost adjustments 
are described below in detail.

Summary of Costs and Benefits

    The costs and benefits for all three alternatives are analyzed in 
this regulatory evaluation. It is anticipated that approximately 40,000 
MEs will be needed for the NRCME to accommodate the demand for an 
estimated 2.6 million medical examinations per year, and to provide 
adequate access, both in terms of geographic coverage and relatively 
short appointment waiting times. All alternatives involve an initial 
training phase in which the 40,000 MEs receive training. This phase is 
expected to last 2 years. At the beginning of the third year the Agency 
requires drivers to be examined by MEs listed on the NRCME once their 
current medical certification expires. Under Alternative 1, the 
alternative adopted by this Final Rule, MEs are required to attend a 
training conducted by a private-sector organization. It is anticipated 
that this will result in training and testing fees that would have to 
be paid by MEs. Under Alternative 2, no training or testing fees would 
have been incurred by MEs, but the Agency would have borne the costs of 
providing the training and testing services. MEs would have borne the 
cost of long distance travel to the FMCSA training center under 
Alternative 2. Long distance travel to a designated training program 
was also anticipated under Alternative 3. Under Alternative 1 it is 
anticipated that training programs will be available throughout the 
country, and that some programs will offer online training courses, 
which will minimize the need for long distance travel.
    It is also anticipated that by screening out physically unqualified 
drivers, this rule may require some drivers, who cannot meet the 
physical qualification standards, and would no longer be able to evade 
detection, to leave the industry and seek an alternative occupation. 
Carriers to would bear the cost of hiring replacement drivers. 
Recruiting new drivers is an activity that consumes carrier resources, 
and there is therefore a cost associated with that activity. We 
therefore provide an estimate of the number of drivers who may be 
forced to retire from the occupation, and estimate the costs associated 
with recruiting an equal number of replacement drivers.
    The 10-year total cost of the Public-Private Partnership Model is 
estimated at $232 million, when discounted at a 7 percent discount 
rate. Undiscounted annual costs vary between $14 million and $59 
million, with ME certification costs (training and testing costs plus 
lost time and travel costs) being the largest portion of the cost at 
approximately $31.5 million in the highest-cost year. Alternative 2 has 
a total discounted 10-year cost of $383 million, with undiscounted 
annual costs ranging between $17 million and $88 million. Alternative 3 
has a total 10-year discounted cost of $337 million, with undiscounted 
annual costs ranging between $16 million and $92 million. In all 
alternatives, the value of ME time spent in training is the largest 
portion of cost. The costs of the training/testing, including lost time 
and travel costs for MEs, is estimated to vary between $63 million and 
$131 million during the initial training phase, depending on the 
alternative, with Alternative 1 having the lowest cost. The lower cost 
associated with Alternative 1 is due to its minimization of travel and 
associated costs, both in expenses and lost time, to MEs.
    Because all three alternatives are expected to improve the 
performance of MEs by equivalent amounts, total benefits are expected 
to be equivalent for all programs. These benefits are based on the 
reduction in CMV crashes that is likely to result from improved medical 
screening of drivers. It is estimated that physically impaired 
interstate drivers are responsible for approximately 9,687 of the 
roughly 440,000 commercial motor vehicle crashes that occur annually. 
Although it is not anticipated that this program would completely 
eliminate these crashes, it is expected to prevent a portion of them. 
We estimate that this program may prevent up to one-fifth of these 
crashes annually, which would result in approximately 1,219 fewer 
crashes per year. The estimated annual benefit associated with avoiding 
these crashes is $189 million per year, undiscounted. These full 
benefits are not realized until the program is fully phased in, which 
is several years after the establishment of the program. Nevertheless, 
at a 7 percent discount rate, the 10-year net benefits of this rule are 
estimated at approximately $633.2 million to $784.1 million over 10 
years depending on the alternative. The Agency's chosen alternative has 
the highest net benefits at $784.1 million.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) 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. 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. The Agency conducted an initial Regulatory 
Flexibility Analysis for the NPRM and found that the rule would not 
have a significant economic impact on a substantial number of small 
entities. No comments were received on that analysis from the public. I 
certify that this rule would not have a significant economic impact on 
a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This rulemaking will not impose an unfunded Federal mandate, as 
defined by the Unfunded Mandates Reform Act

[[Page 24124]]

of 1995 (2 U.S.C. 1532, et seq.), that would result in the expenditure 
by State, local, and tribal governments, in the aggregate, or by the 
private sector, of $143.1 million or more in any 1 year. The $143.1 
million figure was derived by inflation adjusting the $100 million cap 
in the original Act from 1995 to 2010 dollars using the Consumer Price 
Index.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    FMCSA analyzed this action under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. We 
determined that this rulemaking does not concern an environmental risk 
to health or safety that may disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This final rule does not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Executive Order 13132 (Federalism)

    FMCSA analyzed this rule in accordance with the principles and 
criteria contained in Executive Order 13132. FMCSA has determined that 
this rulemaking will have no significant cost or other effect on or for 
States. States will have policy-making discretion. Nothing in this 
document will preempt any State law or regulation. Therefore, this rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism assessment.

Executive Order 12372 (Intergovernmental Review)

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

Privacy Impact Assessment

    FMCSA conducted a privacy impact assessment of this rule as 
required by section 522(a)(5) of division H of the Fiscal Year 2005 
Omnibus Appropriations Act, Public Law 108-447, 118 Stat. 3268 
(December 8, 2004) (set out as a note to 5 U.S.C. 552a). The assessment 
considers any impacts of the rule on the privacy of information in an 
identifiable form and related matters. FMCSA determined that this 
initiative will create impacts on privacy of information associated 
with implementation of this rule.
    FMCSA only collects PII necessary for official purposes as stated 
in the National Registry final rule. In addition, FMCSA only obtains 
such PII by lawful and fair means and, to the greatest extent possible, 
with the knowledge or consent of the individual. The FMCSA Office of 
Information Technology adheres to the Fair Information Practice 
Principles (FIPPs) to assist the Agency in protecting the 
confidentiality and privacy of PII associated with the implementation 
of the National Registry final rule. These best practices incorporate 
standards and practices equivalent to those required under the Privacy 
Act of 1974 (5 U.S.C. 552a) and other Federal laws that are consistent 
with the FIPPs. These practices include management, operational, and 
technical safeguards that are appropriate for the protection of PII. 
The entire privacy impact assessment is available for review in the 
docket.

Paperwork Reduction Act

    This rule contains the following new information collection 
requirements. As required by the Paperwork Reduction Act of 1995 (PRA) 
(44 U.S.C. 3507(d)), FMCSA submitted the information requirements 
associated with the proposal to the Office of Management and Budget for 
its review.
    Title: National Registry of Certified Medical Examiners (National 
Registry).
    Summary: Under SAFETEA-LU, the Secretary of Transportation is 
required to establish and maintain a current national registry of 
medical examiners who are qualified to perform examinations and issue 
medical certificates that verify whether a CMV driver's health meets 
FMCSA standards. In addition, section 4116(b) of SAFETEA-LU requires 
that the medical examinations of CMV operators be performed by MEs who 
have received training in physical and medical examination standards, 
and, after the National Registry is established, are listed on the 
National Registry. SAFETEA-LU also requires MEs to electronically 
transmit the name of the applicant and FMCSA numerical identifier for 
any completed Medical Examination Report required under Sec.  391.43 to 
the Chief Medical Examiner on a monthly basis.
    Once the National Registry Program is implemented, FMCSA will 
accept medical examinations performed only by certified MEs listed on 
the National Registry, as required by law. The National Registry 
Program would require MEs to complete training developed from 
standardized curriculum specifications and pass a national 
certification test. The procedures used to develop and maintain the 
quality of the Program are expected to be in accordance with national 
accreditation standards for certification programs established by the 
NCCA, the accreditation arm of the National Organization for Competency 
Assurance.
    Requirements imposed on intrastate drivers and employers for this 
information collection are being considered since State laws are 
generally in substantial conformity with the Federal regulations for 
medical qualifications of commercial drivers. Consequently, the 
estimate of the number of CMV drivers (respondents) covered by this 
information collection reflects both interstate drivers subject to the 
FMCSRs and intrastate drivers subject to compatible State regulations. 
Although Federal regulations do not require States to comply with the 
medical requirements in the FMCSRs, most States do mirror the Federal 
requirements; therefore, we are including intrastate drivers, which is 
consistent with other FMCSA information collections, to accurately 
reflect the burden of this information collection.
    Close tracking and monitoring of certification activities and 
medical outcomes are crucial, and the rule addresses the information 
collection aspects of National Registry implementation. To this end, 
the rule requires MEs to submit four types of data:
    (1) Medical Examiner Application and Test Results Data: To be 
listed on the National Registry, MEs must first pass a certification 
test to ensure they demonstrate an established level of competency. 
FMCSA and private-sector testing organizations will collect data from 
MEs as the medical professionals apply to take this certification test. 
Data elements required of MEs at the time of application will include 
professional contact and identifying information such as job title, 
address, and training and State licenses obtained. These data will be 
collected each time the ME applies to sit for the certification test 
and information will be updated with FMCSA as needed. Test results data 
will include total test score and responses for each test item. 
Private-sector testing organizations will regularly transmit medical 
examiner data and test results

[[Page 24125]]

electronically to FMCSA for inclusion in a centralized, confidential 
database.
    (2) CMV Driver Medical Examination Results Data: Once every 
calendar month, each ME listed on the National Registry is required to 
complete and transmit to FMCSA Form MCSA-5850, CMV Driver Medical 
Examination Results, with the following information about each CMV 
driver examined during the previous month: Name, date of birth, 
driver's license number and State, date of examination, an indication 
of the examination outcome (for example, medically qualified), whether 
intrastate driver only, and date of driver medical certification 
expiration. Data will be submitted electronically via a secure FMCSA-
designated Web site. In order to continue to be listed on and to 
continue participation in the National Registry, MEs need to comply 
with this requirement on a monthly basis. MEs who examine drivers who 
operate only in intrastate commerce may report those driver examination 
results on the form and check the checkbox for ``Intrastate Only''. 
Data on intrastate only driver examinations will be used to provide 
information to State and local enforcement officials on medical 
examiner performance and driver physical qualifications.
    (3) Medical Examination Reports and Medical Examiner's 
Certificates: The National Registry Final Rule requires medical 
examiners to provide copies of Medical Examination Reports and medical 
examiner's certificates to authorized representatives, special agents, 
or investigators of the FMCSA or authorized State or local enforcement 
agency representatives. These documents contain the driver's social 
security number, date of birth, driver license number, and health and 
medical information.
    It is necessary for medical examiners to provide Medical 
Examination Reports and medical examiner's certificates to an 
authorized representative, special agent, or investigator of FMCSA or 
an authorized State or local enforcement agency representative in order 
to determine ME compliance with FMCSA medical standards and guidelines 
in performing CMV driver medical examinations. Failure to comply with 
FMCSA medical standards and guidelines may result in removal from the 
National Registry. Medical examiner's certificates provide additional 
documentation to determine compliance with FMCSA medical standards and 
guidelines by linking the ME to both the medical examination and the 
driver medical certification decision. They also determine compliance 
by ensuring the certification decision matches the information in the 
medical examination and that the certificate is completed correctly.
    (4) Verification of National Registry Number by Motor Carriers: 
Motor carriers will be required to verify the National Registry Number 
of the medical examiner for each driver required to be examined by a 
medical examiner on the National Registry and place a note relating to 
verification in the driver qualification file, as required by 
provisions in 49 CFR 391.23 and 391.51. This data collection 
requirement will also provide proof that the motor carrier has met its 
obligation to require drivers to comply with the regulations that apply 
to the driver (49 U.S.C. 31135(a) and 49 CFR 390.11).
    Respondents (Including the Number of): The likely respondents to 
this proposed information requirement are 40,000 MEs from medical 
professions who are believed to conduct the majority of current CMV 
driver medical examinations (APNs, DCs, DOs, MDs, and PAs) and one or 
more national private-sector testing organizations that deliver the 
certification test. We are unable to estimate the number of private-
sector organizations that might wish to perform testing.
    Frequency: FMCSA estimates each of the respondents would provide ME 
test application data every 6 years and updated information as needed. 
FMCSA further estimates that each respondent would provide CMV driver 
examination data a maximum of 12 times per year. It is estimated that 
an average of approximately 20,000 MEs will apply to take the 
certification test annually for the first 2 years of National Registry 
implementation. It is estimated that one or more testing organizations 
will deliver the FMCSA medical examiner certification test to 20,000 
MEs annually for the first 2 years following implementation of the 
National Registry Program. It is projected that MEs would file 
4,623,000 medical examiner's certificates per year and that authorized 
representatives of FMCSA or authorized State or local enforcement 
agency representatives would request MEs to provide copies of the 
Medical Report Form and the medical examiner's certificate 2,100 times 
a year.
    Annual Burden Estimate: This proposal would result in an annual 
recordkeeping and reporting burden as follows:
    FMCSA estimates each of the respondents will provide medical 
examiner certification test results and application data every 6 years 
and updated information to FMCSA as needed. It is estimated that 20,000 
medical examiner candidates will apply to take the certification test 
annually for the first 2 years of National Registry implementation, or 
an average of 13,333 applicants per year for the first 3 years of the 
program. FMCSA estimates that the total annual burden hours for the 
collection of the medical examiner application data is 1,111 hours 
[13,333 applicants x 5 minutes/60 minutes per response = 1,111 hours]. 
This annual burden includes medical examiner candidate time for 
submitting the application data to the private-sector testing 
organizations.
    It is estimated that it will take private-sector testing 
organization personnel 5 minutes per ME to collect and upload to FMCSA 
application data and test results. FMCSA estimates that the total 
annual burden hours for private-sector testing organizations to collect 
medical examiner application data and send ME application and test 
results data to FMCSA is 1,111 hours (13,333 applicants x 5 minutes/60 
minutes per medical examiner = 1,111 hours).
    FMCSA estimates that respondents would provide CMV driver 
examination data a maximum of 12 times per year and would file 
4,623,000 medical examiner's certificates per year. It is projected 
that 40,000 certified MEs will be needed to perform the 4,623,000 CMV 
driver medical examinations required annually. The transmission of CMV 
driver examination data will require approximately 46,525 hours of 
medical examiner administrative personnel time on a yearly basis 
[40,000 registered medical examiners x 1 minute/60 minutes to file a 
report x 12 reports per year + 4,623,000 reports x 30 seconds/3600 
seconds to enter each driver's examination data elements = 46,525 
hours]. It is estimated that it will take medical examiner 
administrative personnel 30 seconds to file the medical examiner's 
certificate. This will require approximately 38,525 hours of 
administrative personnel time on a yearly basis [4,623,000 examinations 
x 30 seconds/3600 seconds per certificate = 38,525]. In addition, FMCSA 
estimates that half of motor carriers will request a copy of the 
medical examiner's certificate and that it will take administrative 
personnel 1 minute to provide a copy of the medical examiner's 
certificate to a motor carrier. The annual time burden to the 
administrative personnel for providing motor carriers with a copy of 
the medical examiner's certificate is approximately 38,525 hours 
[4,623,000 examinations x .5 (50%) x 1 minute/60 minutes = 38,525 
hours]. The annual time burden to medical examiner administrative 
personnel for transmitting CMV driver examination

[[Page 24126]]

data to the FMCSA, filing medical examiner's certificates, and 
providing copies of the medical examiner's certificates to motor 
carriers is approximately 123,575 hours [46,525 hours to enter driver 
examination data elements and 38,525 hours for filing the medical 
examiner's certificate and 38,525 hours for providing medical 
examiner's certificates to motor carriers = 123,575 hours].
    FMCSA estimates that authorized representatives, special agents, or 
investigators of FMCSA or authorized State or local enforcement agency 
representatives will request MEs to provide copies of the Medical 
Examination Report and the medical examiner's certificate 2,100 times a 
year.
    It is estimated that it will take ME administrative personnel 5 
minutes to provide both the Medical Examination Report and the medical 
examiner's certificate to FMCSA or an authorized State or local 
enforcement agency representative upon request, so this will require 
approximately 175 hours of administrative personnel time on a yearly 
basis [2,100 requests x 5 minutes/60 minutes per response = 175 hours].
    FMCSA estimates that motor carriers will verify the National 
Registry Number for 4,623,000 drivers per year who are medically 
certified. It is estimated that it will take motor carrier 
administrative personnel 4 minutes to verify the National Registry 
Number, write a note regarding the verification, and file the note in 
the Driver Qualification file, so this will require approximately 
308,200 hours of administrative personnel time on a yearly basis 
[4,623,000 verifications x 4 minutes/60 minutes per verification = 
308,200 hours].
    The total estimated annual time burden to respondents for the 
National Registry components is approximately 434,172 hours \7\ [2,222 
hours for provision of medical examiner application and test results 
data (1,111 hours for medical examiners and 1,111 hours for testing 
organizations) + 123,575 hours for CMV driver examinations (46,525 
hours to enter driver examination data elements + 38,525 hours for 
filing the medical examiner's certificate + 38,525 hours for providing 
medical examiner's certificates to motor carriers) + 175 hours for 
provision of Medical Examination Reports and medical examiner's 
certificates + 308,200 hours for verification of National Registry 
Number].
---------------------------------------------------------------------------

    \7\ The accompanying supporting statement also reflects the 
correction of a minor mathematical error.
---------------------------------------------------------------------------

National Environmental Policy Act and Clean Air Act

    The Agency analyzed this final rule for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
determined under our environmental procedures Order 5610.1, published 
March 1, 2004, in the Federal Register (69 FR 9680), that this action 
required an Environmental Assessment (EA) to determine if a more 
extensive Environmental Impact Statement was required. FMCSA prepared 
an EA and placed it in the docket for this rulemaking. The EA found 
that there are no significant negative impacts expected from the 
actions. Although congestion and air emission impacts are discussed in 
the EA, the impacts are minimal and are not expected to alter the 
Nation's highway congestion or air emissions from surface or air 
transportation vehicles. In addition, while not quantified in this 
analysis, minor benefits to the environment from reducing CMV crashes 
are expected.
    We have 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 involves rulemaking and policy development and 
issuance.

Executive Order 13211 (Energy Effects)

    We analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We determined that it is not a ``significant 
energy action'' under that Executive Order because it will not be 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

Executive Order 12898 (Environmental Justice)

    FMCSA evaluated the environmental effects of this final rule in 
accordance with Executive Order 12898 and determined that there are no 
environmental justice issues associated with its provisions and no 
collective environmental impact resulting from its promulgation.

Executive Order 13175 (Tribal Consultation)

    FMCSA analyzed this action under Executive Order 13175, dated 
November 6, 2000, and believes that it will not have substantial direct 
effects on one or more Indian tribes; will not impose substantial 
compliance costs on Indian tribal governments; and will not preempt 
tribal law. Therefore, a tribal summary impact statement is not 
required.

List of Subjects

49 CFR Part 350

    Grant programs--transportation, Highway safety, Motor carriers, 
Motor vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 383

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Highway safety, Motor carriers

49 CFR Part 390

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

49 CFR Part 391

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

    In consideration of the foregoing, FMCSA amends title 49, Code of 
Federal Regulations, parts 350, 383, 390, and 391, as follows:

PART 350--COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROVISION

0
1. The authority citation for part 350 continues to read as follows:

    Authority: 49 U.S.C. 13902, 31101-31104, 31108, 31136, 31140-
31141, 31161, 31310-31311, 31502; and 49 CFR 1.73.

0
2. In Sec.  350.341, add paragraph (h)(3) to to read as follows:


Sec.  350.341  What specific variances from the FMCSRs are allowed for 
State laws and regulations governing motor carriers, CMV drivers, and 
CMVs engaged in intrastate commerce and not subject to Federal 
jurisdiction?

* * * * *
    (h) * * *
    (3) The State may decide not to adopt laws and regulations that 
implement a registry of medical examiners trained and qualified to 
apply physical qualification standards or variances continued in effect 
or adopted by the State under this paragraph that apply to drivers of 
CMVs in intrastate commerce.

[[Page 24127]]

PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND 
PENALTIES

0
3. The authority citation for part 383 continues to read as follows:

    Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs. 
214 and 215, Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 4140, 
Pub. L. 109-59, 119 Stat. 1144, 1746; and 49 CFR 1.73.



0
4. Amend Sec.  383.73 to by revising paragraph (o)(1)(iii)(E)to read as 
follows:


Sec.  383.73  State procedures.

* * * * *
    (o) * * *
    (1) * * *
    (iii) * * *
    (E) Medical examiner's National Registry Number issued in 
accordance with Sec.  390.109;
* * * * *

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
5. Revise the authority citation for part 390 to read as follows:

    Authority: 49 U.S.C. 504, 508, 31132, 31133, 31136, 31144, 
31151, and 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677-
1678; secs. 212 and 217, Pub. L. 106-159, 113 Stat. 1748, 1766, 
1767; sec. 229, Pub. L. 106-159 (as transferred by sec. 4115 and 
amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 
1743-1744); sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745; and 49 
CFR 1.73.



0
6. Amend Sec.  390.5 by revising the definition of ``medical examiner'' 
to read as follows:


Sec.  390.5  Definitions.

* * * * *
    Medical examiner means the following:
    (1) For medical examinations conducted before May 21, 2014, a 
person who is licensed, certified, and/or registered, in accordance 
with applicable State laws and regulations, to perform physical 
examinations. The term includes but is not limited to, doctors of 
medicine, doctors of osteopathy, physician assistants, advanced 
practice nurses, and doctors of chiropractic.
    (2) For medical examinations conducted on and after May 21, 2014, 
an individual certified by FMCSA and listed on the National Registry of 
Certified Medical Examiners in accordance with subpart D of this part.
* * * * *

0
7. Add subpart D, consisting of Sec. Sec.  390.101 through 390.115, to 
read as follows:
Subpart D--National Registry of Certified Medical Examiners
Sec.
390.101 Scope.
390.103 Eligibility requirements for medical examiner certification.
390.105 Medical examiner training programs.
390.107 Medical examiner certification testing.
390.109 Issuance of the FMCSA medical examiner certification 
credential.
390.111 Requirements for continued listing on the National Registry 
of Certified Medical Examiners.
390.113 Reasons for removal from the National Registry of Certified 
Medical Examiners.
390.115 Procedure for removal from the National Registry of 
Certified Medical Examiners.

Subpart D--National Registry of Certified Medical Examiners


Sec.  390.101  Scope.

    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 Program 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 Program 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.


Sec.  390.103  Eligibility requirements for medical examiner 
certification.

    (a) To receive medical examiner certification from FMCSA a person 
must:
    (1) Be licensed, certified, or registered in accordance with 
applicable State laws and regulations to perform physical examinations. 
The applicant must be an advanced practice nurse, doctor of 
chiropractic, doctor of medicine, doctor of osteopathy, physician 
assistant, or other medical professional authorized by applicable State 
laws and regulations to perform physical examinations.
    (2) Complete a training program that meets the requirements of 
Sec.  390.105.
    (3) Pass the medical examiner certification test provided by FMCSA 
and administered by a testing organization that meets the requirements 
of Sec.  390.107 and that has electronically forwarded to FMCSA the 
applicant's completed test and application information no more than 
three years after completion of the training program required by 
paragraph (a)(2) of this section. An applicant must not take the test 
more than once every 30 days.
    (b) If a person has medical examiner certification from FMCSA, then 
to renew such certification the medical examiner must remain qualified 
under paragraph (a)(1) of this section and complete additional testing 
and training as required by Sec.  390.111(a)(5).


Sec.  390.105  Medical examiner training programs.

    An applicant for medical examiner certification must complete a 
training program that:
    (a) Is conducted by a training provider that:
    (1) Is accredited by a nationally recognized medical profession 
accrediting organization to provide continuing education units; and
    (2) Meets the following administrative requirements:
    (i) Provides training participants with proof of participation.
    (ii) Provides FMCSA point of contact information to training 
participants.
    (b) Provides training to medical examiners on the following topics:
    (1) Background, rationale, mission, and goals of the FMCSA medical 
examiner's role in reducing crashes, injuries, and fatalities involving 
commercial motor vehicles.
    (2) Familiarization with the responsibilities and work environment 
of commercial motor vehicle operation.
    (3) Identification of the operator and obtaining, reviewing, and 
documenting operator medical history, including prescription and over-
the-counter medications.
    (4) Performing, reviewing, and documenting the operator's medical 
examination.
    (5) Performing, obtaining, and documenting additional diagnostic 
tests or medical opinion from a medical specialist or treating 
physician.
    (6) Informing and educating the operator about medications and non-
disqualifying medical conditions that require remedial care.
    (7) Determining operator certification outcome and period for which 
certification should be valid.
    (8) FMCSA reporting and documentation requirements.
    Guidance on the core curriculum specifications for use by training 
providers is available from FMCSA.

[[Page 24128]]

Sec.  390.107  Medical examiner certification testing.

    An applicant for medical examiner certification or recertification 
must apply, in, accordance with the minimum specifications for 
application elements established by FMCSA, to a testing organization 
that meets the following criteria:
    (a) The testing organization has documented policies and procedures 
that:
    (1) Use secure protocols to access, process, store, and transmit 
all test items, test forms, test data, and candidate information and 
ensure access by authorized personnel only.
    (2) Ensure testing environments are reasonably comfortable and have 
minimal distractions.
    (3) Prevent to the greatest extent practicable the opportunity for 
a test taker to attain a passing score by fraudulent means.
    (4) Ensure that test center staff who interact with and proctor 
examinees or provide technical support have completed formal training, 
demonstrate competency, and are monitored periodically for quality 
assurance in testing procedures.
    (5) Accommodate testing of individuals with disabilities or 
impairments to minimize the effect of the disabilities or impairments 
while maintaining the security of the test and data.
    (b) Testing organizations that offer testing of examinees not at 
locations that are operated and staffed by the organizations but by 
means of remote, computer-based systems must, in addition to the 
requirements of paragraph (a) of this section, ensure that such 
systems:
    (1) Provide a means to authenticate the identity of the person 
taking the test.
    (2) Provide a means for the testing organization to monitor the 
activity of the person taking the test.
    (3) Do not allow the person taking the test to reproduce or record 
the contents of the test by any means.
    (c) The testing organization has submitted its documented policies 
and procedures as defined in paragraph (a) of this section and, if 
applicable, paragraph (b) of this section to FMCSA and agreed to future 
reviews by FMCSA to ensure compliance with the criteria listed in this 
section.
    (d) The testing organization administers only the currently 
authorized version of the medical examiner certification test developed 
and furnished by FMCSA.


Sec.  390.109  Issuance of the FMCSA medical examiner certification 
credential.

    Upon compliance with the requirements of Sec.  390.103(a) or (b), 
FMCSA will issue to a medical examiner applicant an FMCSA medical 
examiner certification credential with a unique National Registry 
Number and will add the medical examiner's name to the National 
Registry of Certified Medical Examiners. The certification credential 
will expire 10 years after the date of its issuance.


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

    (a) To continue to be listed on the National Registry of Certified 
Medical Examiners, each medical examiner must:
    (1) Continue to meet the requirements of this subpart and the 
applicable requirements of part 391 of this chapter.
    (2) Report to FMCSA any changes in the application information 
submitted under Sec.  390.103(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 
applicable laws and regulations of each State in which the medical 
examiner performs examinations.
    (4) Maintain documentation of State licensure, registration, or 
certification to perform physical examinations for each State in which 
the examiner performs examinations and maintain documentation of and 
completion of all training required by this section and Sec.  390.105. 
The medical examiner must make this documentation available to an 
authorized representative of FMCSA or an authorized representative of 
Federal, State, or local government. The medical examiner must provide 
this documentation within 48 hours of the request for investigations 
and within 10 days of the request for regular audits of eligibility.
    (5) Maintain medical examiner certification by completing training 
and testing according to the following schedule:
    (i) No sooner than 4 years and no later than 5 years after the date 
of issuance of the medical examiner certification credential, complete 
periodic training as specified by FMCSA.
    (ii) No sooner than 9 years and no later than 10 years after the 
date of issuance of the medical examiner certification credential:
    (A) Complete periodic training as specified by FMCSA; and
    (B) Pass the test required by Sec.  390.103(a)(3).
    (b) FMCSA will issue a new medical examiner certification 
credential valid for 10 years to a medical examiner who complies with 
paragraphs (a)(1) through (4) of this section and who successfully 
completes the training and testing as required by paragraphs (a)(5)(i) 
and (ii) of this section.


Sec.  390.113  Reasons for removal from the National Registry of 
Certified Medical Examiners.

    FMCSA may remove a medical examiner from the National Registry of 
Certified Medical Examiners when a medical examiner fails to meet or 
maintain the qualifications established by this subpart, the 
requirements of other regulations applicable to the 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 medical examiner fails to comply with the requirements for 
continued listing on the National Registry of Certified Medical 
Examiners, as described in Sec.  390.111.
    (b) FMCSA finds that there are errors, omissions, or other 
indications of improper certification by the medical examiner of an 
operator in either the completed Medical Examination Reports or the 
medical examiner's certificates.
    (c) The FMCSA determines the 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 medical examiner fails to comply with the examination 
requirements in Sec.  391.43 of this chapter.
    (e) The medical examiner falsely claims to have completed training 
in physical and medical examination standards as required by this 
subpart.


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

    (a) Voluntary removal. To be voluntarily removed from the National 
Registry of Certified Medical Examiners, a medical examiner must submit 
a request to the FMCSA Director, Office of Carrier, Driver and Vehicle 
Safety Standards. 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 medical

[[Page 24129]]

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 medical examiner from the National Registry of Certified Medical 
Examiners by issuing a written notice of proposed removal to the 
medical examiner, stating the reasons that removal is proposed under 
Sec.  390.113 and any corrective actions necessary for the medical 
examiner to remain listed on the National Registry of Certified Medical 
Examiners.
    (c) Response to notice of proposed removal and corrective action. A 
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 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 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 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 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 
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 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 medical examiner must comply with this 
subpart 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 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 medical 
examiner must comply with this subpart and correct the deficiencies 
identified in the notice of proposed removal as described in paragraph 
(c)(2) of this section.
    (iii) If the 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 medical examiner is immediately 
removed from the National Registry of Certified Medical Examiners.
    (2) Compliance and corrective action. (i) The medical examiner must 
comply with this subpart 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 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 medical examiner has complied with this subpart and completed the 
required corrective action(s). The Director, Office of Carrier, Driver 
and Vehicle Safety Standards will notify the 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 medical examiner fails to complete the proposed 
corrective action(s) within the 60-day period, the removal becomes 
effective and the 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 and Program 
Development. The request must explain the error(s) committed in 
removing the 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 medical examiner 
must:
    (i) Continue to meet the requirements of this subpart and the 
applicable requirements of part 391 of this chapter.
    (ii) Report to FMCSA any changes in the application information 
submitted under Sec.  390.103(a)(3) within 30 days of the 
reinstatement.
    (iii) Be licensed, certified, or registered in accordance with 
applicable

[[Page 24130]]

State laws and regulations to perform physical examinations.
    (iv) Maintain documentation of State licensure, registration, or 
certification to perform physical examinations for each State in which 
the examiner performs examinations maintain documentation of completion 
of all training required by Sec.  390.105 and Sec.  390.111. The 
medical examiner must also make this documentation available to an 
authorized representative of FMCSA or an authorized representative of 
Federal, State, or local government. The 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 medical examiner from the National Registry of Certified 
Medical Examiners and invalidate the certification credential issued 
under Sec.  390.109. 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 this subpart and the 
applicable requirements of part 391 of this chapter.
    (2) Report to FMCSA any changes in the application information 
submitted under Sec.  390.103(a)(3).
    (3) Be licensed, certified, or registered in accordance with 
applicable State laws and regulations to perform physical examinations.
    (4) Maintain documentation of State licensure, registration, or 
certification to perform physical examinations for each State in which 
the person performs examinations and maintains documentation of 
completion of all training required by Sec. Sec.  390.105 and 390.111. 
The medical examiner must also make this documentation available to an 
authorized representative of FMCSA or an authorized representative of 
Federal, State, or local government. The person must provide this 
documentation within 48 hours of the request for investigations and 
within 10 days of the request for regular audits of eligibility.
    (5) Complete training and testing as required by the Director, 
Office of Carrier, Driver and Vehicle Safety Standards.
    (6) In the case of a person who has been involuntarily removed, 
provide documentation showing completion of any corrective actions 
required in the notice of proposed removal.
    (g) Effect of final decision by FMCSA. If a person is removed from 
the National Registry of Certified Medical Examiners under paragraph 
(c) or (e) of this section, the certification credential issued under 
Sec.  390.109 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 VEHICLE 
(LCV) DRIVER INSTRUCTORS

0
8. Revise the authority citation for part 391 to read as follows:

    Authority: 49 U.S.C. 504, 508, 31133, 31136, and 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; and 49 CFR 1.73.


0
9. Amend Sec.  391.23 by:
0
a. Revising paragraph (m)(1);
0
b. Removing ``, and'' at the end of paragraph (m)(2)(i)(A) and adding 
in its place a period;
0
c. Redesignating paragraph (m)(2)(i)(B) as (m)(2)(i)(C) and adding a 
new paragraph (m)(2)(i)(B).
    The revision and addition read as follows:


Sec.  391.23  Investigation and inquiries.

* * * * *
    (m) * * *
    (1) The motor carrier must obtain an original or copy of the 
medical examiner's certificate issued in accordance with Sec.  391.43, 
and any medical variance on which the certification is based, and, 
beginning on or after May 21, 2014, verify the driver was certified by 
a medical examiner listed on the National Registry of Certified Medical 
Examiners as of the date of issuance of the medical examiner's 
certificate, and place the records in the driver qualification file, 
before allowing the driver to operate a CMV.
    (2) * * *
    (i) * * *
    (B) Beginning on or after May 21, 2014, that the driver was 
certified by a medical examiner listed on the National Registry of 
Certified Medical Examiners as of the date of medical examiner's 
certificate issuance.
* * * * *

0
10. Add Sec.  391.42 to read as follows:


Sec.  391.42  Schedule for use of medical examiners listed on the 
National Registry of Certified Medical Examiners.

    On and after May 21, 2014, each medical examination required under 
this subpart must be conducted by a medical examiner who is listed on 
the National Registry of Certified Medical Examiners.


0
11. Amend Sec.  391.43 by revising paragraphs (a), (g), and (h), and 
adding paragraph (i) to read as follows:


Sec.  391.43  Medical examination; certificate of physical examination.

    (a) Except as provided by paragraph (b) of this section and as 
provided by Sec.  391.42, the medical examination must be performed by 
a medical examiner listed on the National Registry of Certified Medical 
Examiners under subpart D of part 390 of this chapter.
* * * * *
    (g) Upon completion of the medical examination required by this 
subpart:
    (1) The medical examiner must date and sign the Medical Examination 
Report and provide his or her full name, office address, and telephone 
number on the Report.
    (2) If the medical examiner finds that the person examined is 
physically qualified to operate a commercial motor vehicle in 
accordance with Sec.  391.41(b), he or she must complete a certificate 
in the form prescribed in paragraph (h) of this section and furnish the 
original to the person who was examined. The examiner must provide a 
copy to a prospective or current employing motor carrier who requests 
it.
    (3) Once every calendar month, beginning May 21, 2014, the medical 
examiner must electronically transmit to the Director, Office of 
Carrier, Driver and Vehicle Safety Standards, via a secure FMCSA-
designated Web site, a completed Form MCSA-5850, Medical Examiner 
Submission of CMV Driver Medical Examination Results. The Form must 
include all information specified for each medical examination 
conducted during the previous month for any driver who is required to 
be

[[Page 24131]]

examined by a medical examiner listed on the National Registry of 
Certified Medical Examiners.
    (h) The medical examiner's certificate shall be substantially in 
accordance with the following form.
BILLING CODE 4910-EX-P

[[Page 24132]]

[GRAPHIC] [TIFF OMITTED] TR20AP12.000

BILLING CODE 4910-EX-C

[[Page 24133]]

    (i) Each original (paper or electronic) completed Medical 
Examination Report and a copy or electronic version of each medical 
examiner's certificate must be retained on file at the office of the 
medical examiner for at least 3 years from the date of examination. The 
medical examiner must make all records and information in these files 
available to an authorized representative of FMCSA or an authorized 
Federal, State, or local enforcement agency representative, within 48 
hours after the request is made.



0
12. Amend Sec.  391.51 by:
0
a. Removing ``and'' at the end of paragraph (b)(7)(iii);
0
b. Removing the period at the end of paragraph (b)(8) and adding in its 
place ``; and'';
0
c. Removing ``and'' at the end of paragraph (d)(4);
0
d. Removing the period at the end of paragraph (d)(5) and adding in its 
place ``; and''; and
0
e. Adding paragraphs (b)(9) and (d)(6).
    The additions read as follows:


Sec.  391.51  General requirements for driver qualification files.

* * * * *
    (b) * * *
    (9) A note relating to verification of medical examiner listing on 
the National Registry of Certified Medical Examiners required by Sec.  
391.23(m).
* * * * *
    (d) * * *
    (6) The note relating to verification of medical examiner listing 
on the National Registry of Certified Medical Examiners required by 
Sec.  391.23(m).

    Issued on: April 10, 2012.
Anne S. Ferro,
Administrator.

Appendix A

Guidance for the Core Curriculum Specifications

    The guidance for the core curriculum specifications is intended 
to assist training organizations in developing programs that would 
be used to fulfill the proposed requirements in the Federal Motor 
Carrier Safety Administration's (FMCSA) final rule for the National 
Registry of Certified Medical Examiners (National Registry). The 
final rule states that a medical examiner must complete a training 
program. FMCSA explained in the preamble to the final rule that 
training providers and organizations must follow the core curriculum 
specifications in developing training programs for medical examiners 
who apply for listing on the Agency's National Registry. This 
training prepares medical examiners to:
    <bullet> Apply knowledge of FMCSA's driver physical 
qualifications standards and advisory criteria to findings gathered 
during the driver's medical examination; and
    <bullet> Make sound determinations of the driver's medical and 
physical qualifications for safely operating a commercial motor 
vehicle (CMV) in interstate commerce.
    The rule, 49 CFR 390.105(b), lists eight topics which must be 
covered in the core curriculum specifications. The core curriculum 
specifications are arranged below by numbered topic, followed by 
guidance to assist training providers in developing programs based 
on the core curriculum specifications.

Guidance for Each of the Core Curriculum Specifications

    (1) Background, rationale, mission and goals of the FMCSA 
medical examiner's role in reducing crashes, injuries and fatalities 
involving commercial motor vehicles.

Mission and Goals of Federal Motor Carrier Safety Administration 
(FMCSA)

    <bullet> Discuss the history of FMCSA and its position within 
the Department of Transportation including its establishment by the 
Motor Carrier Safety Improvement Act of 1999 and emphasize FMCSA's 
Mission to reduce crashes, injuries and fatalities involving large 
trucks and buses.

Role of the Medical Examiner

    <bullet> Explain the role of the medical examiner as described 
in 49 CFR 391.43.
    (2) Familiarization with the responsibilities and work 
environment of commercial motor vehicle (CMV) operations.

The Job of CMV Driving

    <bullet> Describe the responsibilities, work schedules, physical 
and emotional demands and lifestyle among CMV drivers and how these 
vary by the type of driving.
    <bullet> Discuss factors and job tasks that may be involved in a 
driver's performance, such as:
    [cir] Loading and unloading trailers;
    [cir] Inspecting the operating condition of the CMV; and
    [cir] Work schedules:
    [dec221] irregular work, rest, and eating patterns/dietary 
choices.
    (3) Identification of the driver and obtaining, reviewing, and 
documenting driver medical history, including prescription and over-
the-counter medications.

Driver Identification and Medical History:

    Discuss the importance of driver identification and review of 
the following elements of the driver's medical history as related to 
the tasks of driving a CMV in interstate commerce.
    <bullet> Inspect a State-issued identification document with the 
driver's photo to verify the identity of the individual being 
examined; identify the commercial driver's license or other types of 
driver's license.
    <bullet> Identify, query and note issues in a driver's medical 
record and/or health history as available, which may include:
    [cir] specific information regarding any affirmative responses 
in the history;
    [cir] any illness, surgery, or injury in the last five years;
    [cir] any other hospitalizations or surgeries;
    [cir] any recent changes in health status;
    [cir] whether he/she has any medical conditions or current 
complaints;
    [cir] any incidents of disability/physical limitations;
    [cir] current medications and supplements, and potential side 
effects, which may be potentially disqualifying;
    [cir] his/her use of recreational/addictive substances (e.g., 
nicotine, alcohol, inhalants, narcotics or other habit-forming 
drugs);
    [cir] disorders of the eyes (e.g., retinopathy, cataracts, 
aphakia, glaucoma, macular degeneration, monocular vision);
    [cir] disorders of the ears (e.g., hearing loss, hearing aids, 
vertigo, tinnitus, implants);
    [cir] cardiac symptoms and disease (e.g., syncope, dyspnea, 
chest pain, palpitations, hypertension, congestive heart failure, 
myocardial infarction, coronary insufficiency, or thrombosis);
    [cir] pulmonary symptoms and disease (e.g., dyspnea, orthopnea, 
chronic cough, asthma, chronic lung disorders, tuberculosis, 
previous pulmonary embolus, pneumothorax);
    [cir] sleep disorders (e.g., obstructive sleep apnea, daytime 
sleepiness, loud snoring, other);
    [cir] gastrointestinal disorders (e.g., liver disease, digestive 
problems, hernias);
    [cir] genitourinary disorders (e.g., kidney stones and other 
renal conditions, renal failure, hernias);
    [cir] diabetes mellitus:
    [dec221] current medications (type, potential side effects, 
duration on current medication);
    [dec221] complications from diabetes; and
    [dec221] presence and frequency of hypoglycemic/hyperglycemic 
episodes/reactions;
    [cir] other endocrine disorders (e.g., thyroid disorders, 
interventions/treatment);
    [cir] musculoskeletal disorders (e.g., amputations, arthritis, 
spinal surgery);
    [cir] neurologic disorders (e.g., loss of consciousness, 
seizures, stroke/transient ischemic attack, headaches/migraines, 
numbness/weakness); or
    [cir] psychiatric disorders (e.g., schizophrenia, severe 
depression, anxiety, bipolar disorder, or other conditions) that 
could impair a driver's ability to safely function.
    (4) Performing, reviewing and documenting the driver's medical 
examination.

Physical Examination (Qualification/Disqualification Standards (Sec.  
391.41 and 391.43))

    <bullet> Explain the FMCSA physical examination requirements and 
advisory criteria in relationship to conducting the driver's 
physical examination of the following:
    [cir] Eyes (Sec.  391.41(b)(10))
    [dec221] equal reaction of both pupils to light;
    [dec221] evidence of nystagmus and exophthalmos;
    [dec221] evaluation of extra-ocular movements.
    [cir] Ears (Sec.  391.41(b)(11))
    [dec221] abnormalities of the ear canal and tympanic membrane;
    [dec221] presence of a hearing aid.
    [cir] Mouth and throat (Sec.  391.41(b)(5))
    [dec221] conditions contributing to difficulty swallowing, 
speaking or breathing;
    [cir] Neck (Sec.  391.41(b)(7))
    [dec221] range of motion;

[[Page 24134]]

    [dec221] soft tissue palpation/examination (e.g., lymph nodes, 
thyroid gland).
    [cir] Heart (Sec.  391.41(b)(4) and (b)(6))
    [dec221] chest inspection (e.g., surgical scars, pacemaker/
implantable automatic defibrillator);
    [dec221] auscultation for thrills, murmurs, extra sounds, and 
enlargement;
    [dec221] blood pressure and pulse (rate and rhythm);
    [dec221] additional signs of disease (e.g., edema, bruits, 
diaphoresis, distended neck veins.
    [cir] Lungs, chest, and thorax (Sec.  391.41(b)(5))
    [dec221] respiratory rate and pattern;
    [dec221] auscultation for abnormal breath sounds;
    [dec221] abnormal chest wall configuration/palpation.
    [cir] Abdomen (Sec.  391.41(a)(3)(i) and 391.43(f))
    [dec221] surgical scars;
    [dec221] palpation for enlarged liver or spleen, abnormal masses 
or bruits/pulsation, abdominal tenderness, hernias (e.g., inguinal, 
umbilical, ventral, femoral or other abnormalities).
    [cir] Spine (Sec.  391.41(b)(7))
    [dec221] surgical scars and deformities;
    [dec221] tenderness and muscle spasm;
    [dec221] loss in range of motion and painful motion;
    [dec221] spinal deformities.
    [cir] Extremities and trunk (Sec.  391.41(b)(1), (b)(4) and 
(b)(7))
    [dec221] gait, mobility, and posture while bearing his/her 
weight; limping or signs of pain;
    [dec221] loss, impairment, or use of orthosis;
    [dec221] deformities, atrophy, weakness, paralysis, or surgical 
scars;
    [dec221] elbow and shoulder strength, function, and mobility;
    [dec221] handgrip and prehension relative to requirements for 
controlling a steering wheel and gear shift;
    [dec221] varicosities, skin abnormalities, and cyanosis, 
clubbing, or edema;
    [dec221] leg length discrepancy; lower extremity strength, 
motion, and function
    [dec221] other abnormalities of the trunk.
    [cir] Neurologic status (Sec.  391.41(b)(7), (b)(8) and(b)(9))
    [dec221] impaired equilibrium, coordination or speech pattern 
(e.g., ataxia);
    [dec221] sensory or positional abnormalities;
    [dec221] tremor;
    [dec221] radicular signs;
    [dec221] reflexes (e.g., asymmetric deep-tendon, normal/abnormal 
patellar and Babinski).
    [cir] Mental status (Sec.  391.41(b)(9))
    [dec221] comprehension and interaction;
    [dec221] cognitive impairment;
    [dec221] signs of depression, paranoia, antagonism, or 
aggressiveness that may require follow-up with a mental health 
professional.
    (5) Performing, obtaining and documenting diagnostic tests and 
obtaining additional testing or medical opinion from a medical 
specialist or treating physician.

Diagnostic Testing and Further Evaluation

    <bullet> Describe the FMCSA diagnostic testing requirements and 
the medical examiner's ability to request further testing and 
evaluation by a specialist.
    [cir] Urine test for specific gravity, protein, blood and 
glucose (Sec.  391.41(a)(3)(i));
    [cir] Whisper or audiometric testing (Sec.  391.41(b)(11));
    [cir] Vision testing for color vision, distant acuity, 
horizontal field of vision and presence of monocular vision (Sec.  
391.41(b)(10));
    [cir] Other testing as indicated to determine the driver's 
medical and physical qualifications for safely operating a CMV.
    [cir] Refer to a specialist a driver who exhibits evidence of 
any of the following disorders (Sec.  391.43(e) and (f)):
    [dec221] vision (e.g., retinopathy, macular degeneration);
    [dec221] cardiac (e.g., myocardial infarction, coronary 
insufficiency, blood pressure control);
    [dec221] pulmonary (e.g., emphysema, fibrosis);
    [dec221] endocrine (e.g., diabetes);
    [dec221] musculoskeletal (e.g., arthritis, neuromuscular 
disease);
    [dec221] neurologic (e.g., seizures);
    [dec221] sleep (e.g., obstructive sleep apnea);
    [dec221] mental/emotional health (e.g., depression, 
schizophrenia); or
    [dec221] other medical condition(s) that may interfere with 
ability to safely operate a CMV.
    (6) Informing and educating the driver about medications and 
non-disqualifying medical conditions that require remedial care.

Health Counseling

    <bullet> Inform course participants of the importance of 
counseling the driver about:
    [cir] possible consequences of non-compliance with a care plan 
for conditions that have been advised for periodic monitoring with 
primary healthcare provider;
    [cir] possible side effects and interactions of medications 
(e.g., narcotics, anticoagulants, psychotropics) including products 
acquired over-the-counter (e.g., antihistamines, cold and cough 
medications or dietary supplements) that could negatively affect 
his/her driving;
    [cir] the effect of fatigue, lack of sleep, poor diet, emotional 
conditions, stress, and other illnesses that can affect safe 
driving;
    [cir] if he/she is a contact lens user, the importance of 
carrying a pair of glasses while driving;
    [cir] if he/she uses a hearing aid, the importance of carrying a 
spare power source for the device while driving;
    [cir] if he/she has a history of deep vein thrombosis, the risk 
associated with inactivity while driving and interventions that 
could prevent another thrombotic event;
    [cir] if he/she has a diabetes exemption, that he/she should:
    [dec221] carry a rapidly absorbable form of glucose while 
driving;
    [dec221] self-monitor blood glucose one hour before driving and 
at least once every four hours while driving;
    [dec221] comply with each condition of his/her exemption;
    [dec221] plan to submit glucose monitoring logs for each annual 
recertification;
    [cir] corrective or therapeutic steps needed for conditions 
which may progress and adversely impact safe driving ability (e.g., 
seek follow-up from primary care physician);
    [cir] steps needed for reconsideration of medical certification 
if driver is certified with a limited interval, e.g., the return 
date and documentation required for extending the certification time 
period.
    (7) Determining driver certification outcome and period for 
which certification should be valid.

Assessing the Driver's Qualifications and Disposition

    <bullet> Explain how to assess the driver's medical and physical 
qualification to operate a CMV safely in interstate commerce using 
the medical examination findings weighed against the physical and 
mental demands associated with operating a CMV by:
    [cir] Considering a driver's ability to
    [dec221] move his/her body through space while climbing ladders; 
bend, stoop, and crouch; enter and exit the cab;
    [dec221] manipulate steering wheel;
    [dec221] perform precision prehension and power grasping;
    [dec221] use arms, feet, and legs during CMV operation;
    [dec221] inspect the operating condition of a tractor and/or 
trailer;
    [dec221] monitor and adjust to a complex driving situation; and
    [dec221] consider the adverse health effects of fatigue 
associated with extended work hours without breaks;
    [cir] Considering identified disease or condition(s) progression 
rate, stability, and likelihood of gradual or sudden incapacitation 
for documented conditions (e.g., cardiovascular, neurologic, 
respiratory, musculoskeletal and other).

Medical Certificate Qualification/Disqualification Decision and 
Examination Intervals

    <bullet> Discuss the medical examiner's obligation to consider 
potential risk to public safety and the driver's medical and 
physical qualifications to drive safely when issuing a Medical 
Examiner's Certificate, when to qualify/disqualify the driver and 
how to determine the expiration date of the certificate by:
    [cir] using the requirements stated in the FMCSRs, with 
nondiscretionary certification standards to disqualify a driver
    [dec221] with a history of epilepsy;
    [dec221] with diabetes requiring insulin control (unless 
accompanied by an exemption);
    [dec221] when vision parameters (e.g., acuity, horizontal field 
of vision, color) fall below minimum standards unless accompanied by 
an exemption;
    [dec221] when hearing measurements with or without a hearing aid 
fall below minimum standards;
    [dec221] currently taking methadone;
    [dec221] with a current clinical diagnosis of alcoholism; or
    [dec221] who uses a controlled substance including a narcotic, 
an amphetamine, or another habit-forming drug without a prescription 
from the treating physician;
    [cir] using clinical expertise, disqualify a driver when 
evidence shows a driver has a medical condition that in your opinion 
will likely interfere with the safe operation of a CMV;
    [cir] certifying a driver for an appropriate duration of 
certification interval;

[[Page 24135]]

    [cir] if he/she has a condition for which the medical examiner 
is deferring the driver's medical certification or disqualifying the 
driver, informing the driver of the reasons which may include:
    [dec221] a vision deficiency (e.g., retinopathy, macular 
degeneration);
    [dec221] the immediate post-operative period;
    [dec221] a cardiac event (e.g., myocardial infarction, coronary 
insufficiency);
    [dec221] a chronic pulmonary exacerbation (e.g., emphysema, 
fibrosis);
    [dec221] uncontrolled hypertension;
    [dec221] endocrine dysfunctions (e.g., insulin-dependent 
diabetes);
    [dec221] musculoskeletal challenges (e.g., arthritis, 
neuromuscular disease);
    [dec221] a neurologic event (e.g., seizures, stroke, TIA);
    [dec221] a sleep disorder (e.g., obstructive sleep apnea); or
    [dec221] mental health dysfunctions (e.g., depression, bipolar 
disorder).
    (8) FMCSA reporting and documentation requirements.

Documentation of Medical Examination Findings

    Demonstrate the required FMCSA medical examination report forms, 
appropriate methods for recording the medical examination findings 
and the rationale for certification decisions including:
    <bullet> Medical Examination Report Form
    [cir] identification of the driver;
    [cir] use of appropriate Medical Examination Report form;
    [cir] assurance that driver completes and signs driver's portion 
of the Medical Examination Report form;
    [cir] specifics regarding any affirmative response on the 
driver's medical history;
    [cir] height/weight, blood pressure, pulse;
    [cir] results of the medical examination, including details of 
abnormal findings;
    [cir] audiometric and vision testing results;
    [cir] presence of a hearing aid and whether it is required to 
meet the standard;
    [cir] if obtained, funduscopic examination results;
    [cir] the need for corrective lenses for driving;
    [cir] presence or absence of monocular vision and need for a 
vision exemption;
    [cir] if driver has diabetes mellitus and is insulin dependent, 
the need for a diabetes exemption;
    [cir] other laboratory, pulmonary, cardiac testing performed; 
and
    [cir] the reason(s) for the disqualification and/or referral.
    <bullet> Other supporting documentation
    [cir] if driver has current vision exemption, include the 
ophthalmologist's or optometrist's report;
    [cir] if a driver has a diabetes exemption, include the 
endocrinologist's and ophthalmologist's/optometrist's report;
    [cir] treating physician's work release;
    [cir] if obtained, specialist's evaluation report;
    [cir] if the driver has a current Skill Performance Evaluation 
Certificate, include it; and
    [cir] results of Substance Abuse Professional evaluations for 
alcohol and drug use and/or abuse for a driver with
    [dec221] alcoholism who completed counseling and treatment to 
the point of full recovery.
    <bullet> Medical Examiner's Certificate
    [cir] certification status, which may require:
    [dec221] waiver/exemption;
    [dec221] wearing corrective lenses;
    [dec221] wearing a hearing aid; or
    [dec221] a Skill Performance Evaluation Certificate;
    [cir] complete and accurate documentation on medical 
certification card including:
    [dec221] the examiner's name, examination date, office address, 
and telephone number and Medical Examiner signature; and
    [dec221] the driver's signature.

[FR Doc. 2012-9034 Filed 4-19-12; 8:45 am]
BILLING CODE 4910-EX-P


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