Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Notices 52465 

Nebraska, for a distance of about 30 

miles. Existing US–30 is a two-lane 

rural highway generally serving eastwest vehicle traffic. Alternatives under 

consideration include: (1) Taking no 

action; (2) reconstruction of US–30 on 

existing alignment; and (3) providing a 

four-lane highway on new alignment. 

A conflict resolution effort has been 

initiated to help resolve issues 

surrounding potential roadway 

alignments. An Advisory Panel made up 

of stakeholders has been formed to 

advise the decision-making authorities. 

Local citizen input is provided for 

through contact with panel 

representatives, or agency contacts. 

Agency scoping and a public scoping/ 

information meetings were held 

previously during preparation of an 

Environmental Assessment (EA) for this 

project. A Draft EIS will be prepared 

and a public hearing will be held. 

Public notice will be given for any 

additional information meetings and the 

public hearing. 

To ensure that the full range of issues 

related to this proposed action are 

addressed and all significant issues 

identified, comments and suggestions 

are invited from all interested parties. 

Comments or questions concerning this 

proposed action and the EIS should be 

directed to the FHWA or the Nebraska 

Department of Roads at the address 

provided. 

(Catalog of Federal Domestic Assistance 

Project Number 20.205, Highway Planning 

and Construction. The regulations 

implementing Executive Order 12372 

regarding intergovernmental consultation on 

Federal programs and activities apply to this 

program.) 

Dated: August 26, 2005. 

Edward W. Kosola, 

Realty/Environmental Officer, Nebraska 

Division, Federal Highway Administration, 

Lincoln, Nebraska. 

[FR Doc. 05–17527 Filed 9–1–05; 8:45 am] 

BILLING CODE 4910–22–M 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

[FMCSA Docket No. FMCSA–2005–20721] 

Qualification of Drivers; Exemption 

Applications; Diabetes 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of final disposition. 

SUMMARY: FMCSA announces its 

decision to exempt four individuals 

from its rule prohibiting persons with 

insulin-treated diabetes mellitus (ITDM) 

from operating commercial motor 

vehicles (CMVs) in interstate commerce. 

The exemptions will enable these 

individuals to qualify as drivers of 

CMVs in interstate commerce. 

DATES: The exemptions are effective 

September 2, 2005. The exemptions 

expire on September 3, 2007. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Mary D. Gunnels, Office of Bus and 

Truck Standards and Operations, (202) 

366–4001, FMCSA, Department of 

Transportation, 400 Seventh Street, 

SW., Washington, DC 20590–0001. 

Office hours are from 8 a.m. to 5 p.m., 

e.t., Monday through Friday, except 

Federal holidays. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

You may see all the comments online 

through the Document Management 

System (DMS) at: http://dmses.dot.gov. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

dms.dot.gov and/or Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

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

through Friday, except Federal holidays. 

Privacy Act: Anyone may search the 

electronic form of all comments 

received into any of DOT’s dockets by 

the name of the individual submitting 

the comment (or of the person signing 

the comment, if submitted on behalf of 

an association, business, labor union, or 

other entity). You may review DOT’s 

complete Privacy Act Statement in the 

Federal Register (65 FR 19477, Apr. 11, 

2000). This statement is also available at 

http://dms.dot.gov. 

Background 

Authority To Grant Exemptions 

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 FMCSA with authority to 

grant exemptions from its 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. By this rule, FMCSA must 

publish a notice of each exemption 

request in the Federal Register (49 CFR 

part 381). 

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 must then examine the 

safety analyses and the public 

comments, and determine whether the 

exemption would achieve a level of 

safety equivalent to, or greater than, the 

level that would be achieved by 

complying with the current regulation 

(49 CFR 381.305). The Agency’s 

decision 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 being 

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)). 

Establishment of FMCSA’s Diabetes 

Exemption Program 

FMCSA published a notice of intent 

to issue exemptions to drivers with 

ITDM on July 31, 2001 (66 FR 39548). 

On September 3, 2003, the agency 

published a notice of final disposition 

announcing its decision to issue 

exemptions to certain insulin-using 

diabetic drivers of CMVs from the 

diabetes mellitus prohibition under 49 

CFR 391.41(b)(3). [68 FR 5241] The 

notice of final disposition explained 

that in considering exemptions, FMCSA 

must ensure that the issuance of 

diabetes exemptions will not be 

contrary to the public interest and that 

the exemption achieves an acceptable 

level of safety. The agency indicated it 

will only grant exemptions to insulinusing diabetic drivers that meet the 

eligibility criteria provided in its notice 

of final disposition. 

Because FMCSA established 

eligibility criteria for use in determining 

whether the granting of a diabetes 

exemption would achieve the requisite 

level of safety, the agency only 

publishes for public comment, the 

names of exemption applicants that 

satisfy the eligibility requirements, 

based upon the information provided by 

the applicant. Applicants that do not 

meet the requirements are notified by 

letter that their applications are denied 

and the agency periodically publishes 

the names of those individuals to satisfy 

the statutory requirement for disclosing 

such information to the public. 

On May 5, 2005, FMCSA published a 

notice of receipt of diabetes exemption 

applications from five individuals, and 

requested comments from the public (70 

52466 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Notices 

FR 20721). The five individuals are: 

Gerald E. Huelle, Lee R. Kumm, 

Mitchell L. Pullen, Charles E. Wheat, Sr. 

and Steven R. Zoller. The public 

comment period closed on June 6, 2005. 

Five comments were received, and fully 

considered by FMCSA in reaching the 

final decision to grant the exemptions. 

FMCSA has evaluated the eligibility 

criteria of the five applications and 

made a determination that granting the 

exemptions to these individuals would 

achieve a level of safety equivalent to, 

or greater than, the level that would be 

achieved by complying with the current 

regulation 49 CFR 391.41(b)(3). One 

applicant, Charles E. Wheat, notified 

FMCSA that he has discontinued use of 

insulin and withdrew his application 

for an exemption. 

Diabetes Mellitus and Driving 

Experience of the Applicants 

The agency established the current 

standard for diabetes in 1970 because 

several risk studies indicated that 

diabetic drivers had a higher rate of 

crash involvement than the general 

population. The diabetes rule provides 

that: A person is physically qualified to 

drive a commercial motor vehicle if that 

person has no established medical 

history or clinical diagnosis of diabetes 

mellitus currently requiring insulin for 

control (49 CFR 391.41(b)(3)). 

FMCSA established its diabetes 

exemption program, based on the 

agency’s July 2000 study entitled ‘‘A 

Report to Congress on the Feasibility of 

a Program to Qualify Individuals with 

Insulin-Treated Diabetes Mellitus to 

Operate in Interstate Commerce as 

Directed by the Transportation Act for 

the 21st Century.’’ The report concluded 

that a safe and practicable protocol to 

allow some insulin-treated diabetic 

drivers to operate CMVs is feasible. The 

September 3, 2003, notice of final 

disposition provides the protocol for 

allowing such drivers to operate CMVs 

in interstate commerce. 

These four applicants have had ITDM 

for 4 to 37 years. These applicants 

report no more than one hypoglycemic 

reaction that resulted in loss of 

consciousness or seizure, that required 

the assistance of another person, or 

resulted in impaired cognitive function 

without warning symptoms in the past 

5 years (with one year of stability 

following any such episode). In each 

case, an endocrinologist has verified the 

driver’s demonstrated willingness to 

properly monitor and manage their 

diabetes. These drivers report no other 

disqualifying conditions, including 

diabetes-related complications. Each 

meets the vision standard at 49 CFR 

391.41(b)(10). 

The four applicants have driven 

CMVs with their ITDM for careers 

ranging from 4 to 37 years. While 

possessing a valid commercial driver’s 

license (CDL) or non-CDL to operate a 

CMV, they have been authorized to 

drive in intrastate commerce, even 

though their ITDM disqualifies them 

from driving in interstate commerce. 

Before issuing CDLs, States subject 

drivers to knowledge and performance 

tests designed to evaluate their 

qualifications to operate a CMV. These 

applicants satisfied testing standards for 

their State of residence. In the past 3 

years, one of the drivers has had a 

conviction for a traffic violation 

(speeding), and no crashes were 

reported. 

The qualifications, experience, and 

medical condition of each applicant 

were stated and discussed in detail in 

the May 5, 2005, notice (70 FR 23904). 

Because there were no docket comments 

on the specific merits or qualifications 

of any applicant, we have not repeated 

the individual profiles here. 

Basis for Exemption Determination 

Under 49 U.S.C. 31315 and 31136(e), 

FMCSA may grant an exemption from 

the diabetes standard in 49 CFR 

391.41(b)(3) if the exemption is likely to 

achieve an equivalent or greater level of 

safety than would be achieved without 

the exemption. The exemption allows 

the applicants to operate CMVs in 

interstate commerce. 

To evaluate the effect of these 

exemptions on safety, FMCSA 

considered medical reports about the 

applicants’ ITDM and vision, as well as 

driving records and experience with 

ITDM. To qualify for an exemption from 

the diabetes standard, FMCSA requires 

verifiable evidence that he or she has 

driven a commercial vehicle safely with 

ITDM for 3 years. 

The applicants’ intrastate driving 

experience and history provide an 

adequate basis for validating their 

ability to drive safely in interstate 

commerce. Consequently, FMCSA finds 

that exempting these applicants from 

the diabetes standard in 49 CFR 

391.41(b)(3) is likely to achieve a level 

of safety equal to that existing without 

the exemption. The agency is granting 

the exemptions for the 2-year period 

allowed by 49 U.S.C. 31315 and 

31136(e) to Gerald E. Huelle, Lee R. 

Kumm, Mitchell L. Pullen and Steven R. 

Zoller. 

Conditions and Requirements 

The terms and conditions of the 

exemption will be provided to the 

applicants in the exemption document. 

Discussion of Comments 

FMCSA received five comments in 

this proceeding. The comments were 

considered and are discussed below. 

Medical Requirements and 

Documentation 

Two physicians and one professional 

medical society commented on specific 

issues relative to medical requirements 

for diabetes exemption applicants. 

(1) Dr. Brahman Levy, M.D. 

commented on the importance of 

ascertaining the level of glucose control, 

such as with glycosylated hemoglobin 

(HgbA1c) levels, and asked how comorbid medical conditions, (e.g., 

hypertension, obesity) would be 

considered in the application evaluation 

process. 

FMCSA requires each applicant for a 

diabetes exemption to submit two 

measures of HgbA1c, to confirm the 

endocrinologist’s report of applicant 

ability to adequately control blood 

glucose levels. Each applicant is 

required to submit documentation by an 

endocrinologist who has conducted a 

complete medical examination. The 

applicant must also submit 

documentation from an examining 

physician stating he or she has no other 

disqualifying conditions, including 

diabetes-related complications. 

(2) Dr. Daniel E. Jimenez, M.D. asked 

for detailed medical information about 

each of the applicants, and information 

about the type of driving performed 

(e.g., intracity, intrastate, interstate). Dr. 

Jimenez opposes granting exemptions to 

drivers with ITDM in general, because 

(1) the demands of commercial driving 

make it difficult to maintain vigilance 

over meal schedules and types of food 

to eat; (2) these drivers may have 

demonstrated non-compliance (with 

treatment, health regimen), and (3) 

drivers with ITDM are likely to have comorbid conditions. 

FMCSA has examined detailed 

medical information about each of the 

applicants as specified in the notice of 

final disposition announcing FMCSA’s 

decision to issue exemptions to certain 

insulin-using diabetic drivers published 

September 3, 2003 (68 FR 52441), but 

has not included the details in the 

notice of applications in accordance 

with the Health Insurance Portability 

and Accountability Act of 1996 (Pub. L. 

104–191, also known as HIPAA) (45 

CFR 160.102). This is the citation for the 

implementing regulations listed by the 

United States Department of Health and 

Human Services. The issue of 

comorbidity is addressed in previous 

discussion (refer to Levy comments). 

(3) The American College of 

Occupational and Environmental 

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.