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###### Department of Transportation

###### Federal Motor Carrier Safety Administration

          - [FMCSA Docket No. FMCSA-2009-0122]

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

# ACTION:

Notice of final disposition.

# SUMMARY:

FMCSA announces its decision to exempt thirty-five 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 operate CMVs in interstate commerce.

# DATES:

The exemptions are effective July 28, 2009. The exemptions expire on July 28, 2011.

# FOR FURTHER INFORMATION CONTACT:

                        Dr. Mary D. Gunnels, Director, Medical Programs, (202) 366-4001,                         *fmcsamedical@dot.gov*, FMCSA, Room W64-224, Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m., Monday through Friday, except Federal holidays.                    

# SUPPLEMENTARY INFORMATION:

## Electronic Access

                    You may see all the comments online through the Federal Document Management System (FDMS) at:                     *http://www.regulations.gov*.                

*Docket:*                     For access to the docket to read background documents or comments, go to                     *http://www.regulations.gov*                     and/or Room W12-140 on the ground level of the West Building, 1200 New Jersey Avenue, SE., 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://www.regulations.gov*.                

## Background

On June 2, 2009, FMCSA published a notice of receipt of Federal diabetes exemption applications from thirty-five individuals, and requested comments from the public (74 FR 26467). The public comment period closed on July 2, 2009, and no comments were received.

FMCSA has evaluated the eligibility of the thirty-five applicants and determined 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).

## 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 drivers with ITDM to operate CMVs is feasible. The September 3, 2003                     **Federal Register**                     Notice (68 FR 52441) in conjunction with the November 8, 2005,                     **Federal Register**                     Notice (70 FR 67777) provides the current protocol for allowing such drivers to operate CMVs in interstate commerce.                

These thirty-five applicants have had ITDM over a range of 1 to 31 years. These applicants report no 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 that the driver has demonstrated willingness to properly monitor and manage their diabetes, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision standard at 49 CFR 391.41(b)(10).

                    The qualifications and medical condition of each applicant were stated and discussed in detail in the June 2, 2009,                     **Federal Register**                     Notice (74 FR 26471). Therefore, they will not be repeated in this notice.                

## Basis for Exemption Determination

Under 49 U.S.C. 31136(e) and 31315, 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                           ( print page 37294)                        considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologist's medical opinion related to the ability of the driver to safely operate a CMV while using insulin.                

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.

## Conditions and Requirements

The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not they are related to an episode of hypoglycemia; (3) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (4) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.

## Discussion of Comments

FMCSA received no comments in this proceeding.

## Conclusion

Based upon its evaluation of the thirty-five exemption applications, FMCSA exempts, Abdelhadi A. Abdelnabi, Dennis W. Athey, II., Barry A. Barber, Jeromy B. Birchard, Kevin J. Blue, Lester B. Brazfield, Bradley M. Brown, Gary L. Brown, Robert F. Browne, III., Robert F. Carter, Howard L. Cooksey, William D. Cornwell, III., Brian P. Dionne, Richard C. Dunn, Donald K. Ennis, Dennis Graves, Michael T. Harris, Daniel H. Henson, J. Theoginis Kehaias, Harold M. Koski, Richard B. Lorimer, Lester J. Manis, Trena L. Marshall, Troy A. Martinson, Ronald R. McDougle, Richard L. Miller, Jerome A. Mjolsness, David K. Mopps, George E. Patton, Jack E. Rensing, Clayton M. Reynolds, Jeffrey S. Saint-Vincent, Richard Scott, Gary A. Sweeney, and David L. Wilhelm from the ITDM standard in 49 CFR 391.41(b)(3), subject to the conditions listed under “Conditions and Requirements” above.

In accordance with 49 U.S.C. 31136(e) and 31315 each exemption will be valid for two years unless revoked earlier by 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. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.

Issued on: July 21, 2009.

Larry W. Minor,

Associate Administrator for Policy and Program Development.

[FR Doc. E9-17969 Filed 7-27-09; 8:45 am]

BILLING CODE 4910-EX-P