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###### Department of Transportation

###### Federal Motor Carrier Safety Administration 

          - [Docket No. FMCSA-2005-22177] 

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

# ACTION:

Notice of applications for exemption from the diabetes standard; request for comments. 

# SUMMARY:

This notice publishes the FMCSA's receipt of applications from three individuals for an exemption from the diabetes mellitus prohibition in the Federal Motor Carrier Safety Regulations. If granted, the exemptions will enable these individuals to qualify as drivers of commercial motor vehicles (CMVs) in interstate commerce without meeting the requirement prescribed in 49 CFR 391.41(b)(3). 

# DATES:

Comments must be received on or before November 18, 2005. 

# ADDRESSES:

You may submit comments identified by any of the following methods. Please identify your comments by the DOT DMS Docket Number FMCSA-2005-22177. 
      - 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 on-line instructions for submitting comments.                     

*Instructions:*                         All submissions must include the agency name and docket number for this notice. For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the                         **Supplementary Information**                         section of this document. 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 under Regulatory Notices.                     

*Docket:*                         For access to the docket to read background documents or comments received, go to                         *http://dms.dot.gov*                         at any time or to 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.                     

# 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:

*Public Participation:*                     The exemption requests and supporting materials, such as the safety analysis, should be placed in the DMS docket as required by 49                           ( print page 60876)                        CFR 381.315(d). The DMS is available 24 hours each day, 365 days a year. You can get electronic submission and retrieval help guidelines under the “help” section of the DMS Web site. If you want us to notify you that we received your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgment page that appears after submitting comments online.                 

*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 the Department of Transportation's complete Privacy Act statement in the                     **Federal Register**                     published April 11, 2000 (65 FR 19477-78) or you may visit                     *http://dms.dot.gov.*

## Background 

Under 49 U.S.C. 31315 and 31136(e), the FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The statute also allows the agency to renew exemptions at the end of the 2-year period. The three individuals listed in this notice have recently requested an exemption from the diabetes prohibition in 49 CFR 391.41(b)(3), which applies to drivers of CMVs in interstate commerce. Accordingly, the agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by the statute. 

## Qualifications of Applicants 

                    1.                     *Doyle F. Heiner.*                     Mr. Heiner, age 42, has had insulin-treated diabetes mellitus since 2001. He has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years. His endocrinologist examined him in 2005 and stated, “He senses easily when his blood sugars are low. He is willing and able to properly monitor and manage his diabetes.” Mr. Heiner meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2005 and stated, “There was no diabetic retinopathy.” Mr. Heiner reported he has driven straight trucks for 24 years, accumulating 120,000 miles, and buses for 10 years, accumulating 130,000 miles. He holds a Class A commercial driver's license (CDL) from Idaho. His driving record shows no crashes or convictions for moving violations in a CMV for the past 3 years.                 

                    2.                     *James R. Moretz, Jr.*                     Mr. Moretz, age 40, has had insulin-treated diabetes mellitus since 1997. He has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years. His endocrinologist examined him in 2005 and stated, “Jim is able and has demonstrated willingness to properly monitor and manage his diabetes.” Mr. Moretz meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2005 and certified that his non-proliferative diabetic retinopathy is stable. Mr. Moretz reported that he has driven straight trucks for 4 years, accumulating approximately 100,000 miles, and tractor-trailer combinations for 6.5 years, accumulating approximately 325,000 miles. He holds a Class A CDL from Pennsylvania. His driving record shows no crashes or convictions for moving violations in a CMV for the past 3 years.                 

                    3.                     *Uve J. Witsch.*                     Mr. Witsch, age 42, has had insulin-treated diabetes mellitus since 1999. He has had no hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 5 years. His endocrinologist examined him in 2005 and stated, “He has received diabetes education and management through my office and his knowledge of diabetes is good. He is able to properly monitor and manage his diabetes. He is knowledgeable about the disease and compliant with my recommendations.” Mr. Witsch meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2005 and stated, “Dilated fundus exam revealed normal healthy retina and no diabetic retinopathy.” Mr. Witsch reported he has driven straight trucks for 8 years, accumulating 85,000 miles. He holds a Class C CDL from California. His driving record shows no crashes or convictions for moving violations in a CMV for the past 3 years.                 

## Request for Comments 

In accordance with 49 U.S.C. 31315 and 31136(e), the FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated earlier in the notice. 

FMCSA notes that Section 4129 of the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) requires the agency to begin within 90 days of enactment to revise the physical qualification rules for truck and bus drivers to allow individuals who use insulin to treat their diabetes to operate commercial motor vehicles in interstate commerce. The revised rule must provide for individual assessment of diabetic drivers, and be consistent with the criteria described in section 4018 of the Transportation Equity Act for the 21st Century (TEA-21) (set out as a note to 49 U.S.C. 31305). In response to section 4018, the Secretary transmitted to Congress a study, “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 Equity Act for the 21st Century.” This report concluded that a safe and practical protocol to allow certain insulin-treated diabetic drivers to operate commercial motor vehicles (CMVs) is feasible. 

There are three substantive changes in the standards required by section 4129: (1) Removal of the requirement for three years' experience operating a commercial motor vehicle while being treated with insulin; (2) establishment of a minimum period of insulin use before being allowed to operate a commercial motor vehicle; and (3) establishing limited operating, monitoring and medical requirements that are deemed medically necessary. Section 4129(b)-(c). In addition, the section contemplates that similar revisions will be made in the current exemption program established by the September 3, 2003 (68 FR 52441), notice of final disposition. Until the agency issues a final rule, however, insulin-treated diabetic drivers must continue to apply for exemptions from FMCSA, and request renewals of such exemptions in a timely manner. 

Issued on: October 13, 2005. 

Annette M. Sandberg, 

Administrator. 

[FR Doc. 05-20887 Filed 10-18-05; 8:45 am] 

BILLING CODE 4910-EX-P