Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Notices 52467 

Medicine (ACOEM) states that (1) the 

medical documentation of each 

applicant should be reviewed by a 

physician who understands the safety 

risks inherent in commercial operations 

or the criteria for the evaluation should 

be included in the summary of each 

driver’s qualifications published in the 

Federal Register and (2) additional 

medical testing and evaluation is 

merited (e.g., exercise stress test, cardiac 

and renal function assessment). 

In response to ACOEM’s first 

comment, the notice of final disposition 

published on September 3, 2003 (68 FR 

52441), requires each applicant to be 

examined by an endocrinologist who 

performs a complete medical 

examination, including a 

comprehensive evaluation of the 

applicant’s medical history and current 

status, and evaluation by an 

ophthalmologist or optometrist. As 

indicated previously, all applicant 

health data were not published in 

accordance with HIPPA. Close 

monitoring of these drivers with ITDM 

by an endocrinologist and other medical 

specialists, as well as physical 

qualification by a medical examiner, are 

required. 

Americans With Disabilities Act 

The American Diabetes Association 

expressed concerns about the 

application process for the exemption 

program. The American Diabetes 

Association also alleged discrimination 

against drivers with ITDM. 

FMCSA has developed a plan and 

initiated numerous improvements in the 

application process for exemption 

program applicants, including the 

initiation of work on web-based 

solutions to streamline the application 

process and work on re-evaluating the 

eligibility and monitoring criteria. 

FMCSA notes that the Safe, 

Accountable, Flexible, and Efficient 

Transportation Equity Act of 2005: A 

Legacy for Users (SAFETEA–LU) 

provides specific changes to the driving 

requirement for interstate operators with 

ITDM. These changes eliminate the 

three-year CMV driving requirement 

and significantly reduce the required 

time for management of the diabetic 

condition with insulin treatment. 

FMCSA’s exemption process supports 

drivers with ITDM who seek to operate 

in interstate commerce. In addition, the 

FMCSRs are not contrary to the 

Americans with Disabilities Act (ADA) 

of 1990. The mandates of the ADA do 

not require that FMCSA alter the driver 

qualification requirements contained in 

49 CFR Part 391. The Senate report on 

the ADA, submitted by its Committee on 

Labor and Human Resources, included 

the following explanation: 

With respect to covered entities subject to 

rules promulgated by the Department of 

Transportation regarding physical 

qualifications for drivers of certain 

classifications of motor vehicles, it is the 

Committee’s intent that a person with a 

disability applying for or currently holding a 

job subject to these standards must be able 

to satisfy these physical qualification 

standards in order to be considered a 

qualified individual with a disability under 

Title I of this legislation. S. Rep. 101–116, at 

27 (1989). 

Ability To Predict Safety Outcomes 

The Advocates for Highway and Auto 

Safety (Advocates) oppose granting 

exemptions to drivers with ITDM. Major 

areas of concern include: (1) Past 

driving history is not a predictor for 

future safe driving capability, (2) 

reliance upon previous three-year 

driving record is an inaccurate 

screening criterion, and (3) concern is 

significant about individual driver 

ability to monitor individual blood 

sugar while operating commercial 

(particularly long-haul) vehicles. 

In response to the first two comments, 

the agency considers previous driving 

experience to be an appropriate means 

for predicting future performance, and 

monitors the driving record through the 

Commercial Driver’s License 

Information System (CDLIS). CDLIS is a 

computer system linked to individual 

databases maintained by the 51 

jurisdictions in the United States. In 

response to the third comment, the 

agency relies on the expert medical 

opinion of the endocrinologist and the 

medical examiner, who are required to 

analyze individual ability to control and 

manage the diabetic condition, 

including the individual ability and 

willingness of the driver to monitor 

blood glucose level on an ongoing basis. 

Advocates also referred to comments 

filed with docket no. FMCSA–2001–

9800–121 regarding the establishment of 

the Federal diabetes exemption 

program. The agency responded to these 

comments in its September 3, 2003, 

notice of final determination 

announcing the establishment of the 

Federal diabetes exemption program. 

Conclusion 

After considering the comments to the 

docket and based upon its evaluation of 

the four exemption applications, the 

FMCSA exempts Gerald E. Huelle, Lee 

R. Kumm, Mitchell L. Pullen, and 

Steven R. Zoller from the diabetes 

requirement in 49 CFR 391.41(b)(3), 

subject to the conditions listed under 

‘‘Conditions and Requirements’’ above. 

In accordance with 49 U.S.C. 31315 

and 31136(e), each exemption will be 

valid for two years unless revoked 

earlier by the FMCSA. The exemption 

will be revoked if: (1) The person fails 

to comply with the terms and 

conditions of the exemption; (2) the 

exemption has resulted in a lower level 

of safety than was maintained before it 

was granted; or (3) continuation of the 

exemption would not be consistent with 

the goals and objectives of 49 U.S.C. 

31315 and 31136. If the exemption is 

still effective at the end of the 2-year 

period, the person may apply to the 

FMCSA for a renewal under procedures 

in effect at that time. 

FMCSA notes that Section 4129 of 

SAFETEA–LU requires the agency to 

initiate a rulemaking within 90 days of 

enactment to amend the Federal 

physical qualifications rules for truck 

and bus drivers to allow individuals 

who use insulin to treat their diabetes 

to operate CMVs in interstate commerce. 

Therefore, FMCSA will initiate a 

rulemaking to revise its safety 

regulations to allow certain insulintreated diabetic drivers to operate CMVs 

in interstate commerce. 

The new rule would allow health care 

professionals to make individual 

determinations about insulin-treated 

diabetics’ ability to safely operate a 

CMV in interstate commerce, based on 

guidelines established by the agency, 

through a public notice-and-comment 

rulemaking process. Upon completion 

of the rulemaking required by section 

4129, diabetic drivers would no longer 

be required to apply for, or renew 

exemptions to operate CMVs in 

interstate commerce. Until the agency 

issues a Final Rule, however, insulintreated diabetic drivers must continue to 

apply for exemptions from FMCSA, and 

request renewals of such exemptions in 

a timely manner. 

Issued on: August 29, 2005. 

Warren E. Hoemann, 

Deputy Administrator. 

[FR Doc. 05–17466 Filed 9–1–05; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

[Docket No. FMCSA–2005–21685] 

Parts and Accessories Necessary for 

Safe Operation; Application for an 

Exemption From PINOVA 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

52468 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Notices 

ACTION: Notice of application for 

exemption; request for comments. 

SUMMARY: The Federal Motor Carrier 

Safety Administration (FMCSA) 

requests public comment on an 

application for an exemption received 

from PINOVA on behalf of 29 motor 

carriers that transport short lightered 

wood logs and stumps from various 

points in North Carolina, South 

Carolina, Georgia, Florida, Mississippi, 

and Alabama to PINOVA’s plant in 

Brunswick, Georgia. PINOVA seeks the 

exemption because it believes 

compliance with the commodityspecific rule for securing logs and 

stumps prevents the company from 

using more efficient and effective cargo 

securement methods. PINOVA believes 

the alternative cargo securement method 

used by its motor carriers would 

maintain a level of safety that is 

equivalent to, or greater than, the level 

of safety achieved without the 

exemption. 

DATES: Comments must be received on 

or before October 3, 2005. 

ADDRESSES: You may submit comments 

identified by DOT DMS Docket Number 

FMCSA–2005–21685 by any of the 

following methods: 

• Web site: http://dms.dot.gov. 

Follow the instructions for submitting 

comments on the DOT electronic docket 

site. 

• Fax: 1–202–493–2251. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590–

0001. 

• Hand Delivery: Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

Instructions: All submissions must 

include the agency name and docket 

number for this notice. Note that all 

comments received will be posted 

without change to http://dms.dot.gov 

including any personal information 

provided. Please see the Privacy Act 

heading for further information. 

Docket: For access to the docket and 

to read background documents or 

comments received, go to http:// 

dms.dot.gov and/or Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

Privacy Act: Anyone may search the 

electronic form of all comments 

received into any of DOT’s dockets by 

the name of the individual submitting 

the comment (or of the person signing 

the comment, if submitted on behalf of 

an association, business, labor union, or 

other entity). You may review DOT’s 

complete Privacy Act Statement in the 

Federal Register (65 FR 19477, Apr. 11, 

2000). This statement is also available at 

http://dms.dot.gov. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Luke W. Loy, Vehicle and Roadside 

Operations Division, Office of Bus and 

Truck Standards and Operations, MC–

PSV, (202) 366–0676; Federal Motor 

Carrier Safety Administration, 400 

Seventh Street, SW., Washington, DC 

20590–0001. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 4007 of the Transportation 

Equity Act for the 21st Century (Pub. L. 

105–178, 112 Stat. 107, June 9, 1998) 

amended 49 U.S.C. 31315 and 31136(e) 

to provide authority to grant exemptions 

from motor carrier safety regulations. 

On December 8, 1998, the Federal 

Highway Administration’s Office of 

Motor Carriers, the predecessor to 

FMCSA, published an interim final rule 

implementing section 4007 (63 FR 

67600). On August 20, 2004, FMCSA 

published a final rule (69 FR 51589) on 

this subject. Under this rule, FMCSA 

must publish a notice of each exemption 

request in the Federal Register (49 CFR 

315(a)). The agency must provide the 

public with an opportunity to inspect 

the information relevant to the 

application, including any safety 

analyses that have been conducted. The 

agency must also provide an 

opportunity for public comment on the 

request. 

The agency reviews the safety 

analyses and the public comments, and 

determines whether granting the 

exemption would likely achieve a level 

of safety equivalent to, or greater than, 

the level that would be achieved by the 

current regulation (49 CFR 381.305). 

The decision of the agency must be 

published in the Federal Register (49 

CFR 381.315(b)). If the agency denies 

the request, it must state the reason for 

doing so. If the decision is to grant the 

exemption, the notice must specify the 

person or class of persons receiving the 

exemption, and the regulatory provision 

or provisions from which an exemption 

is granted. The notice must also specify 

the effective period of the exemption 

(up to two years), and explain the terms 

and conditions of the exemption. The 

exemption may be renewed (49 CFR 

381.300(b)). 

The Application for Exemption 

PINOVA is the world’s only producer 

of refined pale wood rosin, vinsol

resin, and natural wood turpentine from 

long leaf yellow pine and slash pine 

lightered wood/fat wood (lightered 

wood). According to PINOVA’s petition, 

‘‘[l]ightered wood material is formed 

when resin collects over a period of 50 

years or more in the trunk and root 

system of mature long leaf yellow pine 

and slash pine trees after the trees have 

died or been cut.’’ Refined pale wood 

rosin and Vinsol resin are made from 

the resin found in the trunk and root 

system of the long leaf yellow pine and 

the slash pine, which are only found 

along the southeast coastal plain of the 

United States. PINOVA contracts with 

motor carriers to transport lightered 

wood material from various points in 

the southeast coastal plain to its 

Brunswick, Georgia, plant. 

PINOVA applied for an exemption on 

behalf of the motor carriers that 

transport lightered wood because 49 

CFR 393.116(a)(3) requires that 

firewood, stumps, log debris and other 

such short logs be transported in a 

vehicle or container enclosed on all four 

sides. However, lightered wood logs and 

other lightered wood material, including 

short logs and stumps less than 4 feet in 

length, are typically transported on 

flatbed logging or stake trucks. This 

means the typical method of securement 

(i.e. flatbed logging or stake truck) used 

by PINOVA’s contract carriers is now 

prohibited by § 393.116(a)(3). 

PINOVA requested a class exemption 

from 49 CFR 303.226(a)(3) for current 

and future commercial motor vehicle 

owners and drivers who transport 

lightered wood/fat wood material from 

points in North Carolina, South 

Carolina, Georgia, Florida, Mississippi, 

and Alabama to its plant in Brunswick, 

Georgia. PINOVA requested that these 

vehicles be allowed to transport short 

lightered wood logs on a flatbed logging 

or stake truck, provided the material is 

securely embedded in longer lightered 

wood logs which are secured according 

to FMCSA’s rules for securing longwood 

and shortwood logs. 

PINOVA believes that granting the 

exemption would not adversely affect 

safety. The company argues that the 

carriers have safely transported 

lightered wood logs and related 

material, including short logs less than 

4 feet in length, on flatbed logging and 

stake trucks for more than 50 years. The 

company believes the track record 

demonstrates that shorter material may 

be safely transported on vehicles 

without walls on all four sides provided 

the wood is securely embedded inside 

Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Notices 52469 

longer material that is properly secured 

with tie downs, as required by FMCSA’s 

cargo securement regulations. A copy of 

the PINOVA application is in the docket 

referenced at the beginning of this 

notice. 

Request for Comments 

In accordance with 49 U.S.C. 31315 

and 31136(e), FMCSA requests public 

comment from all interested persons on 

PINOVA’s application for an exemption 

from 49 CFR 393.116(a)(3). The agency 

will consider all comments received 

before the close of business on the 

comment closing date indicated at the 

beginning of this notice. Comments will 

be available for examination in the 

docket at the location listed under the 

address section of this notice. The 

agency will file comments received after 

the comment closing date in the public 

docket, and will consider them to the 

extent practicable. In addition to late 

comments, the FMCSA will also 

continue to file, in the public docket, 

relevant information that becomes 

available after the comment closing 

date. Interested persons should monitor 

the public docket for new material. 

Issued on: August 29, 2005. 

Warren E. Hoemann, 

Deputy Administrator. 

[FR Doc. 05–17508 Filed 9–1–05; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

[Docket No. NHTSA–2005–20858; Notice 3] 

DOT Chemical, Notice of Appeal of 

Denial of Petition for Decision of 

Inconsequential Noncompliance 

DOT Chemical has appealed a 

decision by the National Highway 

Traffic Safety Administration that 

denied its petition for a determination 

that its noncompliance with Federal 

Motor Vehicle Safety Standard (FMVSS) 

No. 116, ‘‘Motor vehicle brake fluids,’’

is inconsequential to motor vehicle 

safety. 

Notice of receipt of the petition was 

published on April 14, 2005, in the 

Federal Register (70 FR 19837). On July 

18, 2005, NHTSA published a notice in 

the Federal Register denying DOT 

Chemical’s petition (70 FR 41254), 

stating that the petitioner had not met 

its burden of persuasion that the 

noncompliance is inconsequential to 

motor vehicle safety. 

This notice of receipt of DOT 

Chemical’s appeal is published in 

accordance with NHTSA’s regulations 

(49 CFR 556.7 and 556.8) and does not 

represent any agency decision or other 

exercise of judgment concerning the 

merits of the appeal. 

Affected are a total of approximately 

50,000 containers of DOT 4 brake fluid, 

lot numbers KMF02 and KMF03, 

manufactured in June 2004. FMVSS No. 

116 requires that, when tested as 

referenced in S5.1.7 ‘‘Fluidity and 

appearance at low temperature,’’ S5.1.9 

‘‘Water tolerance,’’ and S5.1.10 

‘‘Compatibility,’’ the brake fluid shall 

show no crystallization or 

sedimentation. The subject brake fluid 

shows crystallization and sedimentation 

when tested as referenced in S5.1.7 at 

–40 °F and –58 °F, sedimentation when 

tested as referenced in S5.1.9 at –40 °F, 

and crystallization when tested as 

referenced in S5.1.10 at –40 °F. 

DOT Chemical asserted that the 

noncompliance is inconsequential to 

motor vehicle safety and that no 

corrective action is warranted. DOT 

Chemical stated that there are fiber-like 

crystals in the fluid, which are borate 

salts, and 

are a natural part (no contamination) of DOT 

4 brake fluid production (just fallen out of 

solution in some packaged goods) and have 

not demonstrated any flow restrictions even 

at extended periods of low temperatures at 

minus 40 °F. Furthermore, when the fluid is 

subjected to temperatures in a normal 

braking system, the crystals go back into 

solution in some cases not to reappear at all 

at ambient temperatures. 

NHTSA reviewed the petition and 

determined that the noncompliance is 

not inconsequential to motor vehicle 

safety. In its denial, NHTSA noted that 

it granted petitions for determinations of 

inconsequential noncompliance of 

FMVSS No. 116 to Dow Corning 

Corporation (59 FR 52582, October 18, 

1994) and to First Brands Corporation 

(59 FR 62776, December 6, 1994). In the 

case of Dow, the FMVSS No. 116 

noncompliance arose from a ‘‘slush-like 

crystallization’’ that dispersed ‘‘under 

slight agitation or warming.’’ NHTSA 

accepted Dow’s argument that its ‘slushlike crystallization’’ does not consist of 

‘crystals that are either water-based ice, 

abrasive, or have the potential to clog 

brake system components.’’ NHTSA 

concurred with Dow’s conclusion that 

‘‘the crystallization that occurred ought 

not to have an adverse effect upon 

braking.’’ In the case of First Brands, the 

FMVSS No. 116 noncompliance arose 

from a ‘‘soft non-abrasive gel’’ that also 

dispersed under slight agitation or 

warming. 

NHTSA determined that facts leading 

to the grants of the inconsequential 

noncompliance petitions of Dow and 

First Brands are not analogous to the 

facts in DOT Chemical’s situation. In 

contrast, DOT Chemical’s 

noncompliance results from ‘‘fiber-like 

crystals’’ made of borate salts. These 

borate salt crystals did not disperse 

under slight agitation or warming, but 

had to be physically removed by 

filtration. DOT Chemical asserted that 

‘‘[f]iltration, using Whatman #40 filter 

paper (25–30 micron particle size) 

removed all crystals. The crystals are 

approximately 30–50 microns in width 

and 3–5 mm in length.’’ DOT Chemical 

did not explain how it can assure that 

crystals smaller than 25 microns in 

width did not remain in the brake fluid. 

In its denial of DOT Chemical’s 

petition, NHTSA stated that—even 

assuming that all larger-sized crystals 

were removed from the fluid—the 

agency is concerned that crystals that 

are of a size smaller than 25 microns by 

3–5 mm would remain in the brake 

fluid. The thread-like nature of this type 

of crystallization has the potential to 

clog brake system components, 

particularly in severe cold operation 

conditions. Impurities such as these in 

the brake system may cause the system 

to fail, i.e., to lose the ability to stop the 

vehicle over time due to the 

accumulation of compressible material 

in the brake lines. These impurities may 

also result in the failure of individual 

brake system components due to the 

corrosive nature of the contaminants 

themselves. 

In consideration of the foregoing, 

NHTSA decided that the petitioner did 

not meet its burden of persuasion that 

the noncompliance it described is 

inconsequential to motor vehicle safety. 

Accordingly, its petition was denied. 

In its appeal from NHTSA’s denial, 

DOT Chemical states that ‘‘[t]he words 

and phrases used in the [original] 

petition were not identical to the 

descriptions in the previous cases. DOT 

Chemical wishes to clear up any 

misunderstandings from the original 

petition and reword to match the 

precedent cases.’’

DOT Chemical provides the following 

statements in its appeal: 

—Our choice of the word ‘‘crystals’’ can also 

be described as ‘‘slush-like crystallization’’

(as in the granted petition in 1994) or a 

‘‘soft non-abrasive gel,’’ a look at the 

sample is worth a thousand words or even 

rubbing the material between the fingers. 

—Our ‘‘crystals’’ dispersed and/or went 

completely into solution ‘‘under slight 

agitation or warming’’ (as in the granted 

petition in 1994). 

—Slight Agitation: In DOT Chemical’s 

petition the phrase ‘‘DOT Chemical tested 

the fluid, agitated the material before 

testing to insure that the crystals were part 

of each test’’ we believe implied that the