
[Federal Register: December 1, 2008 (Volume 73, Number 231)]
[Proposed Rules]               
[Page 73129-73147]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01de08-28]                         



[[Page 73129]]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 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: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: The FMCSA proposes to establish and maintain a National 
Registry of Certified Medical Examiners (NRCME) and to require that all 
medical examiners who conduct medical examinations for interstate 
commercial motor vehicle drivers complete certain training concerning 
FMCSA physical qualification standards, pass a test to verify an 
understanding of those standards, and maintain competence by periodic 
training and testing. Following establishment of the NRCME and a 
transition period, FMCSA would accept as valid only medical examiners' 
certificates issued by medical examiners listed on the NRCME. The FMCSA 
is developing the NRCME program to improve highway safety and driver 
health by requiring that medical examiners be trained and certified to 
determine effectively whether a commercial motor vehicle driver's 
health meets FMCSA standards. The program implements requirements in 49 
U.S.C. 31149 and supports FMCSA's goal to improve safety and reduce 
fatalities on our Nation's highways.

DATES: Send your comments on or before January 30, 2009.

ADDRESSES: You may submit comments [identified by DOT Docket ID Number 
FMCSA-2008-0363] by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility: U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. 
E.T., Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    Instructions: 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://www.regulations.gov, including any personal information 
provided. Please see the Privacy Act heading below.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov, and follow the 
online instructions for accessing the dockets, or go to the street 
address listed above.
    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 in the Federal Register published on 
April 11, 2000 (65 FR 19476) or you may visit http://
DocketInfo.dot.gov.
    Public participation: The Federal eRulemaking Portal is available 
24 hours each day, 365 days each year. You can get electronic 
submission and retrieval help and guidelines under the ``help'' section 
of the Federal eRulemaking Portal 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 acknowledgement page that 
appears after submitting comments on-line.
    Comments received after the comment closing date will be included 
in the docket and we will consider late comments to the extent 
practicable. The FMCSA may, however, issue a final rule at any time 
after the close of the comment period.

FOR FURTHER INFORMATION CONTACT: Linda Phillips, Physical 
Qualifications Division (MC-PSP), Federal Motor Carrier Safety 
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. 
Telephone (202) 366-4001. E-mail: linda.phillips@dot.gov.

SUPPLEMENTARY INFORMATION: This document is organized as follows:

I. Legal Basis for the Rulemaking
II. Background
    A. Role of Medical Examiners
    B. Prior Developments Related to Medical Examiners
III. General Discussion of the Proposals
    A. Existing Medical Requirements and the Role of the Proposed 
NRCME Program
    B. Major Elements of the Proposed NRCME Program
    C. Medical Examiner Training
    D. Medical Examiner Certification Testing
    E. Listing on the NRCME
    F. Implementation of the NRCME Program
    G. Changes in Medical Examination Procedures
    H. Removal from the NRCME and Appeal Process
IV. Section-by-Section Discussion of the Proposals
    A. Section 390.5, Definitions
    B. Subpart D of part 390, National Registry of Certified Medical 
Examiners
    1. Section 390.101, Scope
    2. Section 390.103, Eligibility requirements for medical 
examiner certification
    3. Section 390.105, Medical examiner training programs
    4. Section 390.107, Medical examiner certification testing
    5. Section 390.109, Issuance of the FMCSA medical examiner 
certification credential
    6. Section 390.111, Requirements for continued listing on the 
NRCME
    7. Section 390.113, Reasons for removal from the NRCME
    8. Section 390.115, Procedure for removal from the NRCME
    9. Appendix A to part 390, Medical examiner application data 
elements
    C. Section 391.42, Schedule for use of medical examiners listed 
on the National Registry of Certified Medical Examiners
    D. Section 391.43, Medical examination; certificate of physical 
examination
V. Regulatory Analyses and Notices

I. Legal Basis for the Rulemaking

    The primary legal basis for the National Registry of Certified 
Medical Examiners (NRCME) program comes from 49 U.S.C. 31149, enacted 
by section 4116(a) of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users, Pub. L. 109-59, 119 
Stat. 1726 (Aug. 10, 2005) (SAFETEA-LU). Subsection (d) of this section 
provides that:

    The Secretary, acting through the Federal Motor Carrier Safety 
Administration--
    (1) shall establish and maintain a current national registry of 
medical examiners who are qualified to perform examinations and 
issue medical certificates;
    (2) 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;
    (3) shall accept as valid only medical certificates issued by 
persons on the national registry of medical examiners; and
    (4) 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 proposes to implement through this 
rulemaking certain other provisions from new section 31149 related to a 
national

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registry. First, subsection (c) requires FMCSA, with the advice of the 
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 would 
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 (D)). Second, FMCSA would also implement 
requirements for medical examiners to transmit to FMCSA on a monthly 
basis certain information about completed Medical Examination Reports 
of commercial motor vehicle (CMV) drivers. (Section 31149(c)(1)(E)). 
Third, the proposed rule would require medical examiners to provide to 
FMCSA copies of Medical Examination Reports and medical examiner's 
certificates within 48 hours of the request, 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 
proposed rule would establish 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 continues to 
require 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 its general rulemaking authority in 49 U.S.C. 
31136(a), FMCSA 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 NRCME program has 
been delegated to the Administrator of FMCSA. (Section 1.73(g) of Title 
49, Code of Federal Regulations (49 CFR)).

II. Background

A. Role of Medical Examiners

    The FMCSA's primary mission is to reduce crashes, injuries, and 
fatalities involving large trucks and buses. In carrying out its safety 
mandate, FMCSA develops and enforces regulations that enhance safety in 
the operation of CMVs. The FMCSA proposes to develop the NRCME program 
to improve highway safety and driver health by requiring that medical 
examiners be trained and certified to determine effectively whether an 
interstate CMV driver meets FMCSA physical qualification standards 
under 49 CFR part 391. Medical examiners are health care professionals 
who conduct the medical examinations as specified in subpart E of part 
391.
    With limited exceptions, all drivers who operate CMVs, as defined 
in 49 CFR 390.5, in interstate commerce must comply with the 
qualification requirements of part 391 (Sec.  391.1). Each driver 
subject to the physical qualification requirements must be examined and 
certified by a medical examiner, as defined in Sec.  390.5, at least 
once every 2 years. For certain drivers, such as those with severe 
cases of hypertension or other acute medical conditions, more frequent 
medical reexamination by a medical examiner may be required to 
determine whether the driver can still be certified.
    A medical examiner documents the results of the examination on a 
Medical Examination Report specified in Sec.  391.43(f) (also referred 
to as the ``long form''). If the medical examiner determines that a 
driver is physically qualified in accordance with Sec.  391.41(b), the 
examiner certifies that the driver meets the physical qualification 
standards by completing a medical examiner's certificate that complies 
with Sec.  391.43(g) and (h). This certificate also contains check 
boxes to indicate whether the driver is subject to any restrictions 
while operating a CMV, such as wearing corrective lenses or a hearing 
aid, or whether the driver has been granted a medical variance 
requiring the certificate to be accompanied by a medical exemption 
document or a skill performance evaluation (SPE) certificate.

B. Prior Developments Related to Medical Examiners

    National Highway Traffic Safety Administration (NHTSA) Study. 
Interest in certifying medical examiners to evaluate interstate CMV 
drivers dates back to 1978, when NHTSA commissioned a feasibility study 
on the issue [Feasibility of Certifying (Designating) Medical Examiners 
for Interstate Commercial Vehicle Drivers, National Highway Traffic 
Safety Administration, Final Report--June 1978].\1\ This study 
addressed the primary weakness in the overall medical program for CMV 
drivers--the lack of understanding by medical examiners of the 
relationship between the driver's physical condition and the task of 
operating CMVs.
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    \1\ Because of its age, FMCSA is not relying on this study in 
developing the proposed rule. However, because it is only available 
from the National Technical Information Service (NTIS Order No. PB-
293 809/0), a copy has been placed in the docket solely for the 
limited purpose of convenient access by interested parties.
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    Amendment of the Definition of ``Medical Examiner.'' In 1992, the 
Federal Highway Administration (FHWA) (which was responsible for motor 
carrier safety until the fall of 1999) amended the Federal Motor 
Carrier Safety Regulations (FMCSRs) to expand the definition of 
``medical examiner'' to allow other medical professionals such as 
physician assistants, advanced practice nurses, and doctors of 
chiropractic, in addition to medical doctors and doctors of osteopathy 
authorized previously, to perform medical examinations of CMV drivers 
(57 FR 33276; July 28, 1992). As a result of this action, the number of 
potential medical examiners increased. 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.
    Merger of Medical Certification and Commercial Drivers License 
(CDL) Processes Negotiated Rulemaking. In 1996-97, FHWA convened a 
negotiated rulemaking committee to consider merging the medical 
certification with the CDL function. Several of the proposals submitted 
included models for a national registry and for certification of 
medical examiners. (See 61 FR 18713, April 29, 1996, and 61 FR 38133, 
July 23, 1996.) However, the negotiated rulemaking committee was unable 
to reach a consensus and no rulemaking relating to a national registry 
resulted.
    Motor Carrier Safety Improvement Act of 1999. When the Motor 
Carrier Safety Improvement Act of 1999 (MCSIA) (Pub. L. 106-159, 113 
Stat. 1748 (Dec. 9, 1999)), established FMCSA in the Department of 
Transportation (DOT), the idea of a national registry was again raised. 
A Senate version of MCSIA directed the Secretary of Transportation to 
initiate rulemaking to establish a national registry of preferred 
medical providers. However, the enacted legislation did not retain this 
language. MCSIA did direct the Secretary to

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initiate rulemaking for the required medical certification to be made 
part of the CDL. The FMCSA published an NPRM to accomplish this 
combination on November 16, 2006 (71 FR 66723). The NPRM comment period 
closed on February 14, 2007, and a final rule is in development.
    National Transportation Safety Board (NTSB) Public Hearing. The 
idea of a national registry was again discussed during a January 21, 
2000, public hearing conducted by the NTSB concerning a 1999 multiple-
fatality crash. It was determined that the CMV driver in this incident 
had several life-threatening and disqualifying medical conditions. The 
NTSB concluded that medical examiners might not have the knowledge and 
information necessary to make appropriate decisions about driver 
fitness. In its ``Highway Accident Report, Motorcoach Run-Off-The-Road 
Accident, New Orleans, Louisiana, May 9, 1999'' (NTSB/HAR-01/01, PB 
2001--916201, Notation 7381, August 28, 2001), the NTSB recommended 
that FMCSA ``develop a comprehensive medical oversight program for 
interstate drivers * * * '' that includes requirements to ensure 
``individuals performing medical examinations for drivers are qualified 
to do so and are educated about occupational issues for drivers.'' 
(Recommendations H-01-017 through H-01-024)
    In 2003, NTSB added these recommendations for medical certification 
of commercial drivers to its ``Most Wanted'' list of Transportation 
Safety Improvements. In subsequent updates to this list, NTSB provided 
additional details regarding the recommendations. According to the 2008 
NTSB Most Wanted Transportation Safety Improvements brochure, FMCSA 
should act to prevent medically unqualified drivers from operating 
commercial vehicles. This task includes: Establishing a comprehensive 
medical oversight program for interstate commercial drivers; ensuring 
that examiners are qualified and know what to look for; tracking all 
medical certificate applications; enhancing oversight and enforcement 
of invalid certificates; and providing mechanisms for reporting medical 
conditions.
    SAFETEA-LU. Congress included a number of provisions in SAFETEA-LU 
to improve the quality of the medical certification of CMV drivers. 
Among those provisions is the establishment of a Medical Review Board 
and appointment of a Chief Medical Examiner to advise FMCSA on the 
qualifications and training for medical examiners to be listed on a 
national registry. When the prescribed provisions are fulfilled, all 
required medical examinations of CMV drivers would be performed only by 
trained and qualified medical examiners listed on the national 
registry, and their performance would be monitored by FMCSA. S. Rep. 
No. 109-120, at 2, 22 (2005) and H. R. Rep. No. 109-12, at 434 (2005).
    Public meetings and listening sessions. During FMCSA's 2005 and 
2006 public meetings and listening sessions,\2\ a number of medical 
providers and industry representatives expressed concern about the idea 
of an NRCME, and about the current quality of the CMV driver medical 
examinations. Representatives provided anecdotal evidence about drivers 
qualified by health care providers who were clearly unaware of the 
medical standards, guidelines, and other information needed to properly 
determine whether a driver can safely operate a CMV.
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    \2\ Notices published May 18, 2005 (70 FR 28596), and May 18, 
2006 (71 FR 28912).
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    Informal State analyses. In August 2005, informal FMCSA staff 
contacts with the State of California Department of Motor Vehicles 
(CDMV) revealed that of the 66,000 Medical Examination Reports received 
by CDMV between January and June of 2005, 10% of the drivers were 
issued certificates as physically qualified by the medical examiner 
even though the Medical Examination Report indicated that the driver 
should not have been qualified or should have received a medical 
certificate valid for a shorter time period than the certificate the 
medical examiner granted to the driver. Additionally, information 
obtained in July 2005 from the State of Indiana's CDL program indicated 
a general finding of mistakes on 28% of all Medical Examination Reports 
collected. These findings may be an indicator that some unqualified 
drivers are inappropriately being determined physically qualified.

III. General Discussion of the Proposals

A. Existing Medical Requirements and the Role of the Proposed NRCME 
Program

    The physical qualification standards and medical examination 
process currently required under Sec. Sec.  391.41 and 391.43 apply to 
drivers who operate CMVs, as defined in Sec.  390.5. In other words, 
the medical requirements apply to drivers who operate: Trucks with a 
gross vehicle weight rating or gross combination weight rating, or 
gross vehicle weight or gross combination weight, whichever is greater, 
of 10,001 pounds or more; passenger-carrying vehicles (either nine or 
more passengers for compensation or 16 or more passengers not for 
compensation); and vehicles used to transport hazardous materials that 
require placards on the vehicle.\3\ After a transition period to 
establish the NRCME program, this proposal would require interstate 
drivers of CMVs who are required by the FMCSRs to receive medical 
examinations to obtain them from examiners listed on the NRCME. Under 
current rules, all such CMV drivers are required to obtain medical 
certification at least once every 2 years, although drivers with 
certain medical conditions must obtain medical certification more 
frequently. This requirement is unchanged by the proposed rule.
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    \3\ There are several limited exceptions and exemptions from the 
medical certification requirement provided by Sec. Sec.  390.3(f), 
391.2, 391.62, and 391.68(c). However, future implementation of 
section 4136 of SAFETEA-LU limits the exception in Sec.  
390.3(f)(6)(ii) for drivers of small passenger-carrying vehicles 
within a 75 air-mile radius of the driver's normal work reporting 
location. Canadian and Mexican drivers operating in the United 
States will continue to be governed by the provisions of existing 
reciprocity agreements with Canada and Mexico, because they are not 
in conflict with 49 U.S.C. 31136(a)(3) and 31149. See 67 FR 61818, 
61819 (October 2, 2002) and 57 FR 31454, 31455 (July 16, 1992).
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    The Agency estimates that there are 3.1 million interstate CDL 
holders currently working as CMV drivers, and 1.3 million interstate 
CMV drivers who are not required to hold a CDL. The proposed rule 
applies to both categories, and would therefore apply directly to 
approximately 4.4 million active interstate commercial drivers.
    All CMV drivers must be certified at least every 2 years, and as 
previously mentioned, some drivers are certified more frequently. For 
example, some carriers contract with occupational health clinics to 
examine the drivers they employ, and these carriers often insist that 
newly-hired drivers receive an examination from one of their medical 
examiners, even if the newly-hired driver already has a current valid 
medical certification. In addition, the FMCSRs advise medical examiners 
that drivers with certain medical conditions should receive more 
frequent monitoring, and drivers who have these conditions may be 
required to be examined more frequently than every 2 years (for 
example, 49 CFR 391.43(f) and instructions on high blood pressure and 
neurological disorders). Finally, drivers whose ability to perform 
their normal driving duties has been impaired by injury or disease are 
required by Sec.  391.45 to be reexamined before resuming such duties. 
The FMCSA estimates that these exceptions to the

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biennial examination schedule increase the total number of examinations 
conducted per year by 31 percent over that which would result if all 
drivers were examined every 2 years. This increase in examinations due 
to exceptions to the biennial certification requirement is based on 
limited industry data on driver turnover and medical certifications 
issued for time periods of less than 2 years. If we assume that half of 
the 4.4 million drivers described previously in this section would 
require examination each year, that is, 2.2 million drivers, and 
increase this number by 31 percent to account for drivers who are 
examined more frequently than every 2 years, an estimated 3 million 
examinations would be conducted annually. The FMCSA requests comment on 
how frequently drivers are examined more often than every 2 years.
    Health care professionals in a general practice setting commonly 
examine 8 to 10 patients per day, and the Agency is aware of medical 
examiners who currently conduct over 1,000 medical certifications of 
drivers per year. The FMCSA estimates that 40,000 certified medical 
examiners would be sufficient to perform the estimated 3 million 
medical examinations per year. Each of these examiners would conduct an 
average of 75 examinations per year, which is a feasible volume for 
examiners in all types of practices.
    Drivers are permitted by current regulations to be examined and 
certified by medical examiners in any State, and FMCSA does not propose 
to remove this flexibility with the implementation of the NRCME 
program.

B. Major Elements of the Proposed NRCME Program

    In general, under this proposal, FMCSA would develop core 
curriculum specifications and administrative requirements for medical 
examiner training and provide these to private-sector training 
providers for their use. It would also develop a certification test for 
medical examiners and provide it to private-sector testing 
organizations. Under this proposal, training and testing would be 
delivered by these private organizations to medical examiners who meet 
specified eligibility requirements.
    After a qualified applicant completes required medical examiner 
training and passes an FMCSA certification test, FMCSA would certify 
the applicant as a medical examiner and list that person on the NRCME. 
To ensure that medical examiners remain knowledgeable about driver 
qualification requirements as they are updated, examiners would be 
required to comply with periodic training and recertification 
requirements in order to remain listed on the NRCME. When the NRCME 
program is fully implemented, FMCSA would accept as valid only medical 
certificates issued to CMV drivers by medical examiners listed on the 
NRCME.
    By implementing the NRCME program, FMCSA believes that it would 
improve the knowledge and capabilities of certified medical examiners 
about FMCSA's physical qualifications standards and guidelines for 
operators of CMVs. Medical examiners would also be more aware of the 
demands that operating a CMV can make on drivers and the impact such 
demands can have on their health. A CMV operator who does not meet the 
physical qualifications standards can have a direct impact on the 
safety of CMV operations. In addition, the demands of such operations 
may impact the health of CMV drivers. Based on its own knowledge and 
experience, FMCSA believes that the enhancement of the knowledge and 
capabilities of medical examiners would have a clear and direct 
positive impact on both safety of CMV operations and driver health. The 
FMCSA encourages commenters on this proposal to provide additional 
examples of such impacts, derived from their knowledge and experience.
    Information for drivers, employers, and medical examiners about the 
NRCME program would be available primarily through an NRCME Web site, 
and a resource center with a toll-free phone number would also be 
available. On the Web site, drivers and employers could find names and 
addresses of nearby certified medical examiners listed on the NRCME. 
The NRCME Web site would also provide program information about 
training and testing requirements to certified medical examiners and 
medical examiners who wish to become certified. The NRCME Web site 
would also disseminate information to practitioners on new medical 
discoveries, policies, or requirements relevant to the examinations. 
FMCSA seeks comment on how the NRCME Web site and toll-free phone 
number could potentially be used to deliver and/or administer medical 
examiner testing and/or examination certification.
    The FMCSA is developing the certification component of the NRCME 
program using the accreditation standards of the National Commission of 
Certifying Agencies (NCCA). NCCA is the accreditation body of the 
National Organization for Competency Assurance (NOCA). NOCA is the 
oldest and largest accreditation body for the certification industry, 
and is nationally recognized as the leader in setting quality standards 
for credentialing organizations, particularly in the healthcare 
industry. The FMCSA is considering applying for accreditation for the 
certification component of the NRCME program to demonstrate: Ongoing 
quality management for certification test development and security; 
fairness of test administration; appropriate use of test and candidate 
data; and consistency with private-sector best practices in the 
certification industry. FMCSA seeks comment on the criteria that should 
be in place for private organizations to be certified for 
administration of training and testing. FMCSA also seeks comment on 
alternative training, testing, and certification methods--taking into 
consideration applicable Federal requirements, cost-effectiveness, 
administrative simplification, and meeting performance based standards.
    A new certification program (one that has not previously received 
NCCA accreditation) 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. The primary rationale for this requirement is that 
compliance with accreditation standards cannot be determined until 
after the program has demonstrated completion of all critical program 
activities, including development and implementation of policies and 
procedures and development, administration and scoring of the 
certification test. The FMCSA must also consider other programmatic and 
legal issues prior to making a decision to apply for accreditation. 
FMCSA seeks comment on this proposal for certification and 
accreditation, and seeks potential alternatives.

C. Medical Examiner Training

    This NPRM would require that all medical examiners complete 
training conducted by a private-sector training provider accredited by 
a nationally-recognized medical profession accrediting organization to 
provide continuing education credits. The FMCSA would develop the core 
curriculum specifications and administrative requirements with the 
advice of the Medical Review Board and the Chief Medical Examiner, and 
provide these to the training providers to develop and deliver training 
for medical examiners. The FMCSA would initially base the core 
curriculum specifications on the current regulations and guidelines for 
conducting CMV driver medical examinations and would periodically 
review and update the

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requirements and core curriculum. A training provider could expand its 
course content to tailor the training to the needs of its target 
audience, but the course must include the FMCSA core curriculum 
specifications. The length of the training would vary among providers 
depending on whether a training provider expands its course to include 
additional scope and depth. The FMCSA projects that it would take one 
day to teach the FMCSA core curriculum specifications. Current private-
sector medical examiner training programs are generally one day in 
length and use the traditional classroom-based model. However, the 
training delivery method could also vary among providers and include 
self-paced, on-line training; the traditional classroom model; or a 
blended format that combines more than one model. FMCSA seeks comment 
on potential training delivery methods. FMCSA also seeks comment on how 
FMCSA could offer training directly to medical examiners in a cost-
effective manner.
    The FMCSA plans to require accreditation of the FMCSA medical 
examiner training programs because it would maximize consistency and 
quality assurance for the training and would be consistent with 
practices already embraced by the medical professions for continuing 
education. Each of the primary professions that currently perform 
medical examinations under part 391 (that is, doctors of medicine, 
doctors of osteopathy, physician assistants, advanced practice nurses, 
and doctors of chiropractic) utilizes nationally-recognized 
organizations that accredit training programs providing continuing 
education credits to licensed medical professionals. FMCSA seeks 
comment on the costs of training certification programs, and whether 
there are any alternatives to ensure consistency and quality. In 
addition, we seek comment on how certification and accreditation 
requirements would impact the cost of training for medical examiners. 
FMCSA also seeks comment on whether existing certified medical training 
programs would be able to adapt their continuing education programs to 
meet these needs.
    After the initial training, a medical examiner would be required to 
complete periodic retraining at least every 3 years to refresh his or 
her knowledge of both the medical standards for CMV drivers and any 
changes to FMCSA examination standards or guidelines. It is anticipated 
that FMCSA would provide this periodic retraining at no charge to the 
examiner, and that the retraining would be Web-based, allowing the 
medical examiner to verify completion of the training on-line. The 
proposed rule would also require the medical examiner to repeat once 
every 12 years, at a cost to be borne by the examiner, the complete 
initial training program (instead of the periodic retraining). FMCSA 
seeks comment on the cost to medical examiners, and potential training 
and re-training alternatives which would be more cost-effective.

D. Medical Examiner Certification Testing

    The FMCSA would base the medical examiner certification test on the 
results of a Role Delineation Study, a rigorous methodology regularly 
employed in the certification and medical fields when developing a 
valid, reliable, and fair certification test. The FMCSA conducted an 
initial Role Delineation Study (the Study) that identified content for 
the certification test, which is intended to focus on competencies 
common to FMCSA medical examiners from a variety of professional 
backgrounds and work settings. It was completed in April 2007. The task 
list was validated and rated, according to importance of the task, by 
surveying more than 4,000 medical examiners who currently perform CMV 
driver medical examinations. The final report on the initial Study, 
when completed, will be made publicly available. The Study provided an 
assessment of the knowledge, skills, and abilities necessary for an 
FMCSA medical examiner to competently perform CMV driver medical 
examinations in accordance with current FMCSA standards and guidelines. 
The most important information derived from the Study--identification 
of critical tasks--is necessary to create specifications for the 
certification test and forms the basis of a professionally-sound 
quality management system that would support possible future 
accreditation for the certification component of the NRCME program. 
Therefore, a Role Delineation Study will be conducted periodically to 
capture relevant changes in medical practice, standards, and guidelines 
that affect the examination of CMV drivers in order to maintain a 
current and relevant certification test.
    After completing the mandatory training, a medical examiner 
applying to be listed on the NRCME would have to pass the FMCSA medical 
examiner certification test. In addition to the initial certification 
test, medical examiners would be required to recertify by passing the 
medical examiner certification test every 6 years in order to remain 
listed on the registry.
    Before taking the certification test, an applicant would provide 
the testing organization with information such as the applicant's 
medical profession, State medical license or certificate number, 
business address and phone number, and medical examiner training 
provider. In addition, the applicant would provide several statements, 
including a statement that the applicant is capable and willing to 
comply with FMCSA requirements; that upon request he or she would 
provide copies of documents showing evidence of completion of training, 
States licenses, etc.; and an affirmation that all of the information 
provided is true. Proposed Appendix A to part 390 contains a list of 
the minimum information and statements required of an applicant. The 
testing organization would review this information to ensure that the 
applicant provided all of the required information. After an applicant 
completed the test, the testing organization would forward to FMCSA the 
results (that is, the test scores and responses) along with the 
applicant's application package information. The FMCSA would 
periodically audit a percentage of medical examiners to obtain 
verification of eligibility (for example, proof of current State 
medical licensure, registration, or certification to perform physical 
examinations, and proof of completion of required training).
    Under the proposed NRCME program model, an applicant would take a 
certification test provided by a private-sector professional testing 
organization that meets all testing criteria proposed in this NPRM, 
including test delivery and secure data handling criteria. The FMCSA 
expects that an applicant would have to travel to a testing center to 
take a proctored, secure certification test. FMCSA seeks comment on 
alternatives which would allow medical examiners to complete the 
testing requirements on-line, or in a manner which would meet testing 
criteria while reducing the cost and time burden on the medical 
examiner. FMCSA also seeks comment on whether the proposed requirements 
may deter otherwise qualified medical examiners from performing these 
types of examinations.

E. Listing on the NRCME

    The FMCSA would issue an FMCSA medical examiner certification 
credential with a unique identification number and list on the NRCME at 
least the contact information of all medical examiners that meet FMCSA 
eligibility requirements, successfully complete required training, and 
pass the FCMSA medical examiner certification test. The certification 
and listing on the NRCME would expire 6 years after the date of 
issuance of the certification credential.

[[Page 73134]]

The FMCSA would maintain the NRCME on the Web, and drivers and 
employers of drivers would be able to access, by state or zip code, the 
names and contact information (from the information provided by the 
medical examiner under proposed Appendix A to part 390) for medical 
examiners listed on the NRCME. A communications resource center created 
to support medical examiners, drivers, and motor carriers--both with 
and without Internet access--would also be available. The FMCSA 
requests public comment on what types of medical examiner information 
should or should not be made available to the public by the NRCME 
program.

F. Implementation of the NRCME Program

    The FMCSA proposes a phased approach to the required use of medical 
examiners listed on the NRCME. In the first phase, FMCSA proposes to 
require drivers who work for larger employers to have their medical 
examinations performed by medical examiners listed on the NRCME, 
because these drivers are less likely to have problems locating a 
medical examiner. The second phase would expand the requirement to the 
remaining drivers not covered in phase one. The additional time allowed 
for other drivers would allow for growth in the number of medical 
examiners who have completed the proposed certification process and 
have been listed on the NRCME. FMCSA seeks comment on ways to ensure 
that certified medical examiners are accessible to drivers in rural 
areas and areas where the demand for certification may be low, so that 
drivers do not have to travel excessive distances to locate a certified 
medical examiner. FMCSA also seeks comment on additional costs drivers 
may incur to locate and travel to a certified medical examiner for 
their periodic examinations.
    For purposes of phase one, FMCSA proposes to define large employers 
as motor carriers that employ 50 or more CMV drivers. The FMCSA 
proposes that phase one begin 2 years after the effective date of the 
final rule. Any medical examination conducted for a CMV driver employed 
by a large employer under this phase must be conducted by a medical 
examiner listed on the NRCME. The second phase would begin 3 years 
after the effective date of the final rule, would apply to all CMV 
drivers, and would expand the requirement for medical examinations to 
be conducted by medical examiners listed on the NRCME to all CMV 
drivers regardless of the size of the employer. After the applicable 
compliance dates for the affected drivers, FMCSA would accept as valid 
only medical certificates issued by medical examiners listed on the 
NRCME.

G. Changes in Medical Examination Procedures

    This NPRM also proposes implementation of the SAFETEA-LU 
requirement that medical examiners 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 Sec.  391.43. (49 U.S.C. 31149(c)(1)(E)) Additionally, 
the proposed rule would require medical examiners to retain for 3 years 
the Medical Examination Report for each examination performed. It would 
also require medical examiners 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, in order to allow for investigation of 
errors and improper certification of CMV drivers (49 U.S.C. 
31149(c)(2)).
    These requirements also establish the basis for future 
implementation of other statutory requirements for monitoring medical 
examiner performance. For example, although this rulemaking does not 
propose collection of a representative sample and storage of Medical 
Examination Reports and medical certificates in a central database (49 
U.S.C. 31149(c)(1)(E)), in the future FMCSA could begin reviewing a 
representative sample of Medical Examination Reports and medical 
certificates for errors, omissions, or other indications of improper 
certification.

H. Removal From the NRCME and Appeal Process

    This NPRM proposes to define the standards and process by which a 
medical examiner would be removed from the NRCME and the procedures 
provided for appealing such action within the Agency. Under 49 U.S.C. 
31149(c)(2), if a medical examiner issues a medical examiner's 
certificate to a driver who fails to meet the applicable standards at 
the time of the examination or falsely claims to have completed 
required training in the physical qualification standards and medical 
certification process, FMCSA may remove the medical examiner from the 
NRCME. In addition, the statute requires FMCSA to monitor medical 
examiner performance and investigate patterns of errors or improper 
certification of CMV drivers by a medical examiner (49 U.S.C. 
31149(c)(2)). The FMCSA also may remove from the NRCME any medical 
examiner who does not meet the qualification standards or otherwise 
fails to comply with section 31149 or the implementing regulations (49 
U.S.C. 31149(d)(2)).
    To monitor compliance with these statutory requirements, FMCSA may 
investigate whether medical examiners are complying with the 
requirement that they electronically transmit each month the name of 
the driver, an FMCSA numerical identifier for the driver, and the 
results of the examination to FMCSA (via an FMCSA-designated Web site, 
e-mail address, or facsimile number that will be published in the 
Federal Register) for each completed Medical Examination Report 
(including for individuals who failed to meet FMCSA medical standards).
    The proposed rule would also require the medical examiner to 
provide to an authorized representative of FMCSA or to an authorized 
State or local enforcement agency representative, a copy of any Medical 
Examination Report or medical examiner's certificate, within 48 hours 
of the request, so that enforcement personnel can identify errors, 
omissions, or other indications of improper certification by medical 
examiners.
    In addition, FMCSA would review changes submitted by medical 
examiners to their application information. These reviews, along with 
other mechanisms to be developed, would potentially identify medical 
examiners for removal from the NRCME.
    The following are some examples of grounds for removal from the 
NRCME: The medical examiner no longer has at least one valid license, 
registration, or certification to perform physical examinations in any 
State; failure to comply with training requirements; failure to comply 
with FMCSA requirements for electronic transmittal of medical 
examination information to FMCSA; a demonstrated pattern of errors, 
omissions, or other indications of improper certification; and failure 
to provide copies of Medical Examination Reports and medical examiner's 
certificates upon demand. There may also be situations where a medical 
examiner would be voluntarily removed for personal reasons, such as 
health, travel, or retirement.
    The proposed appeal process provides an opportunity for a medical 
examiner who has been proposed to be removed to correct an identified 
deficiency or request administrative review by FMCSA.

[[Page 73135]]

IV. Section-by-Section Discussion of the Proposals

A. Section 390.5, Definitions

    Section 390.5 currently defines ``medical examiner'' as a person 
licensed by a State to perform physical examinations and lists examples 
of types of medical professions authorized to perform examinations of 
CMV drivers under part 391. Section 4116(c) of SAFETEA-LU adds a 
statutory definition of ``medical examiner'' to 49 U.S.C. 31132(6) as 
``an individual licensed, certified, or registered in accordance with 
regulations issued by the Federal Motor Carrier Safety Administration 
as a medical examiner.'' The proposed revision of the definition of 
medical examiner in Sec.  390.5 in this NPRM provides for the new 
statutory definition to replace the current regulatory definition once 
the final rule is completely implemented as provided in proposed Sec.  
391.42. The eligibility requirements regarding State medical licensure, 
registration, or certification would also appear in proposed Sec.  
390.103(a), covering eligibility requirements for medical examiner 
certification.

B. Subpart D of Part 390, National Registry of Certified Medical 
Examiners

    The FMCSA proposes to establish a new subpart D in part 390 that 
would include the requirements for training and testing of medical 
examiners for listing on, and removal from, the NRCME, including appeal 
provisions. The requirements for medical examinations would remain in 
part 391.
1. Section 390.101, Scope
    Proposed Sec.  390.101 states that the new subpart would establish 
the minimum qualifications for FMCSA certification of medical examiners 
and for listing medical examiners on the NRCME. It also describes the 
NRCME program and explains that the registry itself is the component of 
the program that would provide the public with a national database 
listing certified medical examiners.
2. Section 390.103, Eligibility requirements for medical examiner 
certification
    Section Sec.  390.103 proposes the eligibility requirements for 
medical examiner certification. Paragraph (a)(1) incorporates the 
requirements from current Sec.  390.5 that applicants must be licensed, 
certified, or registered under the applicable State requirements to 
perform physical examinations. Paragraphs (a)(2) and (a)(3) state that 
applicants must also obtain training and pass a certification test, as 
specified in proposed Sec. Sec.  390.105 and 390.107, respectively. 
Proposed paragraph (b) states that to renew the certification, a 
medical examiner would have to remain licensed, registered, or 
certified by his or her State and complete additional testing and 
training as required by proposed Sec.  390.111(a)(5).
3. Section 390.105, Medical examiner training programs
    Proposed Sec.  390.105 would require an applicant for medical 
examiner certification to complete an accredited training program that 
meets the core curriculum specifications and administrative 
requirements established by FMCSA for medical examiner training. The 
training program would have to be accredited by a nationally-recognized 
medical profession accrediting organization to provide continuing 
education courses. There is at least one such accrediting organization 
for each medical specialty.
    This section clarifies that it is the sole responsibility of 
medical examiners to ensure their training meets these requirements. 
The FMCSA would maintain on the NRCME Web site a list of all training 
providers that have submitted for FMCSA review their course 
documentation that includes, but is not limited to, the course 
syllabus, sample slides, sample handouts, and a sample training module. 
A training provider included on the NRCME Web site would have to agree 
to submit documentation for future reviews to ensure continuing 
compliance with FMCSA requirements. If FMCSA finds that a particular 
training provider does not meet the core curriculum specifications and 
administrative requirements, the name of the training provider would be 
removed from the NRCME Web site. A medical examiner could arrange for 
training by an organization not included in the Web site, but the 
medical examiner would need to ensure that the training program meets 
FMCSA requirements.
4. Section 390.107, Medical examiner certification testing
    Section 390.107 contains the proposed requirements for the medical 
examiner certification test. An applicant would take the certification 
test from a private-sector professional testing organization. As part 
of the testing process, the applicant would have to provide information 
to a private-sector testing organization. Proposed Appendix A to part 
390 would list the minimum information that the applicants would be 
required to provide. The applicant would take the test at a testing 
center provided by a testing organization that meets FMCSA standards 
for delivering these tests. The testing organization would supply the 
applicant's personal application information and test results to FMCSA.
    The testing organization would: (1) Submit for FMCSA review its 
documented policies and procedures to ensure they meet FMCSA criteria; 
and (2) agree to future FMCSA reviews to ensure continuing compliance. 
The FMCSA is considering the option of listing on the NRCME Web site 
testing organizations that meet FMCSA standards. However, the medical 
examiner would need to ensure that the testing organization he or she 
chooses to use meets FMCSA requirements.
5. Section 390.109, Issuance of the FMCSA medical examiner 
certification credential
    Proposed Sec.  390.109 states that FMCSA would issue an FMCSA 
medical examiner certification credential with a unique identification 
number to each applicant found to be in compliance with the 
requirements of Sec. Sec.  390.103-390.107, and would list the medical 
examiner's name on the NRCME. In accordance with the phased-in schedule 
proposed in Sec.  391.42, FMCSA proposes to accept as valid only 
medical certificates issued by medical examiners listed on the NRCME.
    In addition, proposed Sec.  390.109 specifies that the 
certification credential and the listing on the NRCME would expire 6 
years after issuance. To maintain a listing on the NRCME and to receive 
a new credential, the medical examiner would need to comply with the 
training, testing, and other requirements of proposed Sec.  390.111.
6. Section 390.111, Requirements for continued listing on the NRCME
    Proposed Sec.  390.111 explains how a medical examiner retains a 
listing on the NRCME. Each medical examiner must continue to be 
licensed, registered, or certified, and be authorized to perform 
physical examinations in accordance with the applicable State laws and 
regulations of each State in which the examiner performs examinations. 
For continued listing on the NRCME, the medical examiner would have to 
report to FMCSA changes to any information that the examiner previously 
provided to FMCSA, for example, any information related to any 
termination, suspension, or withdrawal of the medical examiner's 
license, registration, or certificate under State law.
    The medical examiner must maintain documentation of his/her: (1) 
State

[[Page 73136]]

licensing, registration, or certification; and (2) completion of all 
training required under this notice. In addition the medical examiner 
would have to make this documentation available to an authorized 
representative of FMCSA, or an authorized representative of Federal, 
State or local government. The medical examiner would have to make the 
documentation available within 48 hours of a request for investigations 
and within 10 days of a request for regular audits.
    The medical examiner also would have to complete periodic training 
and testing according to a schedule specified in paragraph (a)(5) of 
proposed Sec.  390.111:
     Within 3 years of receiving the credential, the medical 
examiner must complete periodic training. The purpose of this training 
would be to refresh the medical examiner's knowledge of the medical 
standards for CMV drivers and to inform the medical examiner of any 
changes to FMCSA examination standards or guidelines. The FMCSA would 
monitor the results of the certification tests to identify gaps in 
knowledge, and analyze enforcement and crash data to identify other 
areas where additional training may improve the medical certification 
process.
     Within 6 years of receiving the credential, the medical 
examiner must complete the periodic training, plus repeat and pass the 
test taken for initial certification, under Sec.  390.103(a)(3). 
However, in alternating 6 year periods, instead of taking the periodic 
training, the medical examiner would need to repeat the training taken 
for initial certification, under Sec.  390.103(a)(2).
    If a medical examiner complies with the proposed training and 
testing schedule and meets the other maintenance requirements of 
proposed Sec.  390.111, FMCSA would issue a new medical examiner 
certification credential. It would be the responsibility of the medical 
examiner to ensure that he or she receives the new credential before 
the previous one expires.
7. Section 390.113, Reasons for removal from the NRCME
    Section 390.113 proposes the reasons for removal of a medical 
examiner from the NRCME. The reasons include, but are not limited to, 
the following: The medical examiner's failure to continue compliance 
with the basic requirements for inclusion on the NRCME, such as 
maintaining a current State medical license, certification, or 
registration, receiving required periodic training, or renewing the 
FMCSA certification; the medical examiner's failure to comply with the 
FMCSA operational requirements, such as issuing a certificate to 
someone not medically qualified, failure to accurately complete the 
Medical Examination Report or medical examiner's certificate, or 
failure to regularly transmit the names and other information about the 
results of examinations conducted; false claims by the medical examiner 
of completion of any required training; and failure to provide access 
to examination data upon request.
8. Section 390.115, Procedure for removal from the NRCME
    Section 390.115 proposes procedures for removal of a medical 
examiner from the NRCME, as well as the due process protections 
afforded to medical examiners subject to proposed involuntary removal. 
Any involuntary removal action must be undertaken by the FMCSA Director 
of Medical Programs (a new position to be established by the Agency).
    The proposal states that a medical examiner could be removed 
voluntarily by submitting a request to the FMCSA Director of Medical 
Programs. Such a request could be submitted either in writing or 
through a proposed secure information system. The FMCSA is considering 
developing a secure information system through Web interface in which 
each medical examiner listed on the NRCME would receive a unique login 
identification and password upon their acceptance into the NRCME. The 
unique login ID and password would be used to authenticate each request 
for voluntary removal from the NRCME. A request for voluntary removal 
would be effective immediately.
    The proposal then describes the process by which FMCSA would 
initiate and then complete the involuntary removal of a medical 
examiner from the NRMCE at the Agency's discretion. The FMCSA would 
issue to the medical examiner a notice of proposed removal, stating: 
(1) The reasons upon which the proposed removal is based under proposed 
Sec.  390.113; and (2) any corrective actions necessary, if applicable, 
for the medical examiner to remain listed on the NRCME, if he/she so 
chooses. The medical examiner would have an opportunity to submit a 
response in writing no later than 30 days after the date of issuance of 
the notice. The medical examiner could submit to the Director of 
Medical Programs an explanation of any error(s) committed in proposing 
to remove the medical examiner from the NRCME. The Director of Medical 
Programs would review the explanation and could withdraw, modify, or 
affirm the notice of proposed removal. Alternatively, the medical 
examiner could submit to the Director of Medical Programs a written 
response indicating that he or she will come into compliance, if 
possible, and complete the corrective actions identified in the notice 
of proposed removal.
    The medical examiner would have 60 days from either the date of 
issuance of the notice of proposed removal or the date the notice is 
affirmed or modified, whichever is later, to comply with the 
requirements of this subpart and complete the applicable corrective 
actions specified in the notice, as modified or affirmed. If the 
medical examiner fails to take these necessary actions, the proposed 
removal becomes effective. Additionally, if the medical examiner does 
not submit a written response in the 30-day period following issuance 
of the original notice of proposed removal, the medical examiner would 
be removed from the NRCME at the end of that 30-day period.
    Although a person may voluntarily request to be removed from the 
NRCME under proposed Sec.  390.115(a), a person may not request a 
voluntary removal from the NRCME after receiving a notice of proposed 
removal from the Director of Medical Programs. This proposed provision 
is intended to prevent the medical examiner from leaving the NRCME and 
later attempting reinstatement without meeting conditions for 
reinstatement and compliance identified in the notice of proposed 
removal. However, at any time before a notice of proposed removal 
becomes effective, the medical examiner could resolve the matter by 
mutual agreement with the Director of Medical Programs.
    A person who has been removed from the NRCME could request an 
administrative review by submitting to the FMCSA Associate 
Administrator for Policy and Program Development a written request no 
later than 30 days after the date the removal becomes final. The 
Associate Administrator may request additional data or a conference to 
discuss the removal. After completing the review, the Associate 
Administrator would issue a written decision.
    Under proposed Sec.  390.115(e), and as authorized by the 
Administrative Procedure Act, 5 U.S.C. 558(c), the Director of Medical 
Programs would reserve the right to remove a medical examiner from the 
NRCME immediately, either in cases of willfulness or cases in which 
public health, interest, or safety requires. In these cases, the 
provisions for the medical examiner to submit a response

[[Page 73137]]

and take corrective action would not apply. However, the medical 
examiner could submit to the Associate Administrator for Policy and 
Program Development a request for administrative review of the 
emergency removal. The medical examiner must request such a review no 
later than 30 days after the date of removal from the NRCME.
    Proposed Sec.  390.115(f) describes how a person removed from the 
NRCME would request reinstatement. Such a request must be submitted no 
sooner than 30 days after removal from the NRCME. The person must 
provide documentation demonstrating he or she has taken whatever 
action(s) is necessary to correct the deficiencies that resulted 
initially in removal from the NRCME, and demonstrate he or she is in 
compliance with the eligibility requirements of Sec.  390.103(a). The 
Director of Medical Programs may specify additional requirements for 
reinstatement in the notice of proposed removal. In the case of a 
voluntary removal, the person could be reinstated after providing 
documentary proof of satisfying the requirements to be listed on the 
NRCME.
    If FMCSA removes a medical examiner from the NRCME, except at the 
request of the medical examiner, the certification credential issued 
under proposed Sec.  390.109 would no longer be valid. If a medical 
examiner requests voluntary removal from the NRCME, the certification 
credential would remain valid until it expires, but that person would 
not be permitted to conduct FMCSA medical examinations until that 
person provided documentation showing proof of satisfying the 
requirements for continued listing on the NRCME. In either case, the 
removed person's information would still be publicly available on the 
NRCME Web site. A record of the removed person's previous certification 
would remain on the NRCME Web site, with the date of removal, so that 
enforcement personnel and employers of drivers could verify whether a 
medical examiner's certificate was issued by a person listed on the 
NRCME at the time of issuance.
9. Appendix A to part 390, Medical examiner application data elements
    Proposed Appendix A shows the information applicants must provide 
when they arrange with a testing organization to take the FMCSA medical 
examiner certification test. The professional testing organization 
would provide this information to FMCSA along with the results of the 
certification test. When a medical examiner is added to the NRCME, 
FMCSA would post the person's name, business address, telephone number, 
and other contact information on the NRCME Web site. The applicant 
would need to supply a street address for the business location--not a 
post office box, although a post office box could be used for the 
mailing address. The Web site would contain a search function allowing 
drivers to locate certified medical examiners in a particular location. 
The other information required from applicants by Appendix A would be 
used to document a medical examiner's eligibility to be listed on the 
NRCME or to facilitate contact with the applicant by FMCSA.

C. Section 391.42, Schedule for Use of Medical Examiners Listed on the 
National Registry of Certified Medical Examiners

    Under Sec.  391.42, FMCSA proposes a schedule for implementation of 
the requirement that drivers must be examined only by persons who have 
been trained, tested, certified, and are listed on the NRCME, as set 
out in proposed subpart D of part 390. Specifically, beginning on a 
date 2 years after the effective date of the final rule, each medical 
examination required under subpart E of part 391 must be conducted by a 
medical examiner who is listed on the NRCME if the person is employed 
by a motor carrier that employs 50 or more drivers of CMVs. 
Subsequently, beginning on a date 3 years after the effective date of 
the final rule, every medical examination required under subpart E of 
part 391 must be conducted by a medical examiner who is listed on the 
NRCME. The FMCSA requests specific comments on the proposed compliance 
schedule and on the proposed threshold of 50 CMV drivers for the first 
phase of implementation.

D. Section 391.43, Medical Examination; Certificate of Physical 
Examination

    Current Sec.  391.43 contains the requirements for performing the 
medical examination, including instructions for the medical examiner, a 
sample Medical Examination Report form, and a sample medical examiner's 
certificate form. The NPRM contains several proposed amendments to 
Sec.  391.43, including an addition to the information required on a 
medical examiner's certificate.
    First, under the proposal, paragraph (a) would be revised to 
specify that, in accordance with the compliance schedule proposed in 
Sec.  391.42, the medical examination must be performed by a medical 
examiner listed on the NRCME under proposed subpart D of part 390 of 
this chapter.
    Second, paragraph (g) would be revised to add the new requirement 
that once every calendar month the medical examiner must electronically 
transmit certain information to the FMCSA Medical Program. For each 
medical examination of an interstate CMV driver performed during the 
previous month, the required information to be transmitted would be the 
driver's name, the driver's FMCSA numerical identifier, the date of the 
examination, the date of expiration of the medical examiner's 
certificate (the so-called ``medical card''), if issued, and the 
results of the medical examination. The FMCSA proposes to create a 
secure electronic transmission process that medical examiners could use 
to provide the information, such as a secure Web interface, e-mail 
address, or facsimile number. The medical examiner would be required to 
transmit this information not only for persons found to be medically 
qualified, but also for persons found to be medically unqualified or 
temporarily disqualified. Additionally, paragraph (g)(1) repeats part 
of the ``Instructions for Performing and Recording Physical 
Examinations'' in current Sec.  391.43 that requires the medical 
examiner to date and sign the Medical Examination Report and provide 
the medical examiner's full name, office address, and telephone number.
    Third, under the proposal the Medical Examiner's Certificate 
included in paragraph (h) would be revised to add a field for the 
medical examiner to enter the medical examiner's unique National 
Registry Number. Adding the National Registry Number allows FMCSA to 
identify medical examinations performed by particular medical examiners 
and to monitor compliance with these rules. Medical examiners would be 
allowed to use printed certificates they have on hand until 4 years 
after the effective date of the final rule.
    Finally, paragraph (i) would be added to specify that the medical 
examiner must retain the original (paper or electronic) completed 
Medical Examination Report and a copy or electronic version of the 
medical examiner's certificate for 3 years and make them available, 
along with related medical documentation, to an authorized 
representative of the FMCSA or an authorized Federal, State or local 
enforcement agency representative, within 48 hours of the request. The 
requirement for retaining the Medical Examination Report already exists 
under the heading, ``Instructions for

[[Page 73138]]

Performing and Recording Physical Examinations'' in Sec.  391.43.

V. Regulatory Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FMCSA has determined that this action is a significant 
regulatory action within the meaning of Executive Order 12866 and the 
Department of Transportation regulatory policies and procedures. This 
NPRM includes a summary of the Agency's preliminary regulatory analysis 
of the costs and benefits of this undertaking. A copy of the complete 
preliminary analysis is included in the docket referenced at the 
beginning of this notice. FMCSA seeks comment on the costs and benefits 
of this proposal as outlined, as well as alternatives to current cost-
benefit data collection methods currently used to quantify the costs 
and benefits. FMCSA is particularly interested in developing a solid 
estimate of the cost-effectiveness, if not the benefits, of this rule. 
For example, it would be helpful to know what fraction of crashes 
involve drivers without a valid medical certificate and which aspects 
of this rule would be most effective at reducing both of those numbers.
Alternatives
    This regulatory evaluation considers three alternatives for 
implementing this program. One alternative, referred to as the Public-
Private Partnership Model or Alternative 1, would involve 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. Under this 
partnership, the Agency would develop and provide core curriculum 
specifications and the certification test and protocols, and any 
interested organization that can meet FMCSA requirements would be 
eligible to deliver training or testing. Training would be delivered by 
private-sector professional associations, health care organizations, 
and other for-profit and non-profit training providers. Testing would 
be delivered by private-sector professional testing organizations. 
After completing required training, passing the certification test, and 
agreeing to comply with FMCSA administrative requirements, a medical 
examiner would be added to the NRCME, and would be authorized to 
conduct CMV driver physical examinations. After the NRCME is fully 
implemented, only physical examinations conducted by medical examiners 
listed on the NRCME would be recognized by FMCSA and enforcement 
personnel as proof of driver physical qualification.
    Alternative 2 is based on the Federal Aviation Administration's 
(FAA) Aviation Medical Examiner Program (Government Model). This 
alternative would require the Agency to establish its own centralized 
training and testing program. All medical examiners would have to 
attend this Agency-run program and pass the test in order to be 
eligible for listing on the NRCME. This program's components are 
essentially the same as Alternative 1, but all training and testing 
would be conducted by the Agency rather than private-sector training 
and testing organizations. This alternative would also require all 
medical examiners to travel to the FMCSA facility to receive the FMCSA 
training, which involves greater travel expenses on the part of medical 
examiners when compared to Alternative 1, which has training programs 
distributed throughout the country. However, this option would give 
FMCSA optimal control over the quality and content of training provided 
to medical examiners.
    Alternative 3 would be based on the current Department of 
Transportation (DOT) Medical Review Officer (MRO) program requirements. 
The MRO training program grew out of the DOT testing program that 
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 Medical Doctors 
(MD) or Doctors of Osteopathy (DO) are eligible to be MROs. MROs also 
review test results for other safety sensitive occupations such as 
airline mechanics, train operators, and ships' pilots.
    The existing program specifies that MROs who oversee testing for 
commercial drivers must attend training and certification programs that 
satisfy the Department's requirements. Each of these programs maintains 
its own registry of graduates rather than contributing names to a 
single Federal database. DOT does not have direct control over the 
training curriculum or testing protocols for these programs. Thus, the 
Agency would exert less control over the program under a similar 
option. In addition, due to the limited number of organizations issuing 
MRO credentials, these programs are able to charge a higher fee for 
certification testing than would be the case under a more competitive 
atmosphere. Long distance travel for the initial training and testing 
could also be required under this alternative.
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 
medical examiners would be needed for the NRCME to accommodate the 
demand for an estimated 3 million medical examinations per year. All 
alternatives involve an initial training phase in which the 40,000 
medical examiners receive training. This phase is expected to last 3 
years. Beginning with the third year, the Agency would require all 
drivers to be examined by medical examiners listed on the NRCME. Under 
Alternatives 1 and 3, medical examiners would be required to attend 
training conducted by a private-sector organization. The training and 
testing costs would be borne by medical examiners. Under Alternative 2, 
no training or testing fees would be incurred by medical examiners, but 
the Agency would bear the costs of providing the training and testing 
services. Long distance travel to the FMCSA training center would be 
required under Alternative 2. Long distance travel to a designated 
training program is also anticipated under Alternative 3. Under 
Alternative 1--the Public-Private Partnership Model--it is anticipated 
that training programs would be available throughout the country, and 
that some programs would offer on-line training courses, which would 
minimize the need for long distance travel.
    By screening out physically unqualified drivers, this rule may 
impact the labor market in the motor carrier industry. Some commercial 
drivers may have to find alternative occupations because they cannot 
meet the FMCSA physical qualification standards. These alternatives are 
likely to pay less than commercial driving, and this loss of income 
represents the main cost of this impact. Motor carriers would also have 
to bear the burden of hiring new drivers. Each alternative is expected 
to have an equivalent impact on the quality of driver medical 
certification screening, and hence the impacts on the industry are 
likely to be the same for all alternatives.
    The ten year total cost of Alternative 1 is estimated at $587 
million, when discounted at a 7 percent rate. Alternative 2 has a total 
discounted ten year cost of $658 million. Alternative 3 has a total 10 
year discounted cost of $617 million. In all alternatives, the lost 
income to disqualified drivers is the largest portion of cost. The 
costs of the training/testing, including lost time to medical 
examiners, is estimated to vary

[[Page 73139]]

between $31 million and $44 million (undiscounted) 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 medical examiners.
    Because all three alternatives are expected to improve the 
performance of medical examiners 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 drivers operating in interstate commerce are responsible for 
approximately 5,800 of the roughly 420,000 CMV 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. Due to data limitations, we are unable to develop a precise 
estimate of the potential benefits of this rule. If this program were 
to prevent 25 percent of these crashes annually, it would eliminate 
approximately 1,451 crashes per year. The estimated annual benefit 
associated with avoiding these crashes would be $206 million per year. 
At a 7 percent discount rate, the 10 year net benefits under this 
assumption would be between $376--$447 million, depending on the 
alternative chosen.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), FMCSA has considered the effects of this proposed regulatory 
action on small entities and determined that it is not likely to have a 
significant impact on a substantial number of small entities, as 
defined by the U.S. Small Business Administration's Office of Size 
Standards.
    The Small Business Administration (SBA) regulations (13 CFR part 
121) require Federal agencies to analyze the impact of proposed and 
final rules on small entities. The regulations define a ``small 
entity'' in the motor carrier industry by average annual receipts, 
which are currently set at $21.5 million per firm.\4\ The FMCSA has 
developed a model that uses data from the Economic Census (U.S. Census 
Bureau), North American Industrial Classification System (NAICS) Code 
484 ``Truck Transportation'' segments, to assist us in determining the 
number of small trucking entities potentially affected by our proposed 
rules. Examining all property carriers within NAICS Code 484, roughly 
75 percent had annual receipts of less than $21.5 million. Of the 
475,500 current active, interstate motor carriers in the Motor Carrier 
Management Information System (MCMIS), approximately 356,625 are 
considered small entities, and this proposed rule would affect all of 
them. In the Regulatory Evaluation we estimated that the improvements 
in the screening of drivers that would result from the NRCME training 
program would result in some drivers being screened out of the 
occupation due to untreatable disqualifying medical conditions. Motor 
carriers would incur costs to replace these drivers. In the Regulatory 
Evaluation we estimated these costs as $1,600 per replaced driver.
---------------------------------------------------------------------------

    \4\ Small Business Administration Table of Size Standards. 
Available online at: http://www.sba.gov/services/
contractingopportunities/sizestandardstopics/tableofsize/SERV_
TABLE_HTML.html.
---------------------------------------------------------------------------

    Although smaller carriers make up the majority of the carrier 
population by number of firms, these firms only employ 20 percent of 
the driver population. In the regulatory evaluation, we estimated that 
approximately 44,000 drivers would be screened out of the CMV driving 
occupation and would have to be replaced. Since there is no reason to 
suspect that drivers for smaller firms are any more or less healthy 
than drivers for larger firms, we assume that 20 percent (8,800) of the 
drivers that would need to be replaced work for smaller carriers, 
resulting in a total cost to small businesses in this industry of $14.1 
million. Spreading this cost among the carriers that qualify as small 
businesses results in a per-carrier cost of $39.48.
    While these amounts do not represent a significant cost to the 
industry as a whole, or even the small business portion of it, it 
should be noted that the impacts are not spread evenly among all small 
businesses in the industry. Many small businesses in the industry would 
bear no additional costs from this rule, but a subset that employs 
drivers who do not meet current physical qualification standards would 
bear a cost of $1,600 for each driver they would have to replace. This 
may represent a significant cost to a small motor carrier employing 
only one or two drivers operating on a slim margin. However, the 
alternative is to continue allowing drivers who do not meet current 
FMCSA physical qualification requirements to operate CMVs in commerce, 
which would compromise public safety. The FMCSA does not see a way to 
reduce the impacts of this requirement to small businesses in the 
industry without compromising public safety.
    The rule would, at a maximum, affect 8,800 motor carriers that 
qualify as small businesses. These carriers represent approximately 2.5 
percent of small entities in the industry. While the costs to affected 
motor carriers may be significant, the total number of affected small 
entities does not appear to be significant when compared to the size of 
the industry and the number of small entities in the industry. 
Furthermore, this rule does not impose new physical requirements on 
drivers, but only enhances detection of drivers who do not meet current 
physical qualification requirements. These drivers are out of 
compliance with current requirements, and therefore should not be 
operating CMVs in commerce. Whether the cost of replacing these drivers 
should be considered as a cost of this rule is therefore debatable. 
However, the improvement in enforcement would impact the industry, so 
we have accounted for it here.
    Another group of businesses that may be impacted by this rule 
change are the offices of health care providers who currently conduct 
driver medical examinations. Driver examinations would be conducted 
primarily by nurse practitioners, general internal and family 
physicians, and physician's assistants. Combining these groups yields a 
total of 317,000 health care providers who might perform driver 
physical examinations on a regular basis. In order to qualify as a 
small business, a physician's office must bring in $9 million or less 
in revenue annually.\5\ The small-business threshold for nurse 
practitioners and physician assistants is $6.5 million. According to 
the American Academy of Family Physicians, the average gross revenue of 
family medical practices is $360,000 per year. However, it should be 
noted that many physicians and other medical professionals work for 
larger health care organizations such as HMOs and hospital outpatient 
care facilities. These larger organizations would have revenues 
exceeding the threshold for small businesses established by the Small 
Business Administration. Still, the vast majority of family care 
practices are likely to qualify as small businesses. Our best estimate 
is that 90 percent of the firms in this subset of the health care 
industry are small businesses. We estimate that these private health 
care practices have an average of 5 health care providers per firm. 
Given this average, there are likely to be in the neighborhood of 
317,000/5 = 63,400

[[Page 73140]]

firms. Ninety percent of this number is 57,060. This is the number of 
firms that could potentially be impacted by this rule. We do not 
anticipate that the effects of this rule on firms in the health care 
industry would be large enough to be considered significant.
---------------------------------------------------------------------------

    \5\ Ibid.
---------------------------------------------------------------------------

Unfunded Mandates Reform Act of 1995

    This rulemaking would not impose an unfunded Federal mandate, as 
defined by the Unfunded Mandates Reform Act 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 $128.2 
(2005 dollars) million or more in any 1 year.\6\
---------------------------------------------------------------------------

    \6\ The accompanying Regulatory Evaluation for this NPRM 
presents costs and benefits in inflation-adjusted 2005 dollars. The 
$128.2 million figure was derived by inflation adjusting the $100 
million cap in the original Act from 1995 to 2005 dollars using the 
Consumer Price Index.
---------------------------------------------------------------------------

Executive Order 12988 (Civil Justice Reform)

    This proposed action would meet 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)

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

Executive Order 12630 (Taking of Private Property)

    This proposed rulemaking would 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)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132. The FMCSA 
has preliminarily determined that this rulemaking would have no 
significant cost or other effect on or for States. States would have 
policy-making discretion. Nothing in this document would preempt any 
State law or regulation.

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 proposed rule 
as required by section 522(a)(5) of division H of the FY 2005 Omnibus 
Appropriations Act, Public Law 108-447, 118 Stat. 2809, 3268 (Dec. 8, 
2004) [set out as a note to 5 U.S.C. Sec.  552a]. The assessment 
considers any impacts of the proposed rule on the privacy of 
information in an identifiable form and related matters. The entire 
privacy impact assessment for this proposal is available for review in 
the docket.

Paperwork Reduction Act

    This proposal contains the following new information collection 
requirements. As required by the Paperwork Reduction Act of 1995 (PRA) 
(44 U.S.C. 3507(d)), FMCSA has submitted the information requirements 
associated with this proposal to the Office of Management and Budget 
for its review.
    Title: National Registry of Certified Medical Examiners (NRCME).
    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 medical 
examiners who have received training in physical and medical 
examination standards, and, after the NRCME is established, are listed 
on the NRCME. SAFETEA-LU also requires medical examiners 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 NRCME program is implemented, FMCSA would accept medical 
examinations performed only by certified medical examiners listed on 
the NRCME, as required by law. The NRCME program would require medical 
examiners 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 National Commission of 
Certifying Agencies (NCCA), the accreditation arm of the National 
Organization for Competency Assurance (NOCA).
    Third-party requirements of 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 Federal Motor Carrier Safety 
Regulations (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 NPRM addresses the information 
collection aspects of NRCME implementation.
    To this end, the NPRM requires medical examiners to submit three 
types of data:
    (1) Medical Examiner Application and Test Results Data: To be 
listed on the NRCME, medical examiners must first pass a certification 
test to ensure that they demonstrate an established level of 
competency. Private-sector testing organizations would collect data 
from medical examiners as the medical professionals apply to take this 
certification test. Data elements required of medical examiners at the 
time of application would include (but not be limited to) professional 
contact and identifying information such as job title, address, and 
training and State licenses obtained. This information would be 
collected each time the medical examiner applies to sit for the 
certification test, and updated with FMCSA as needed. Test results data 
would include total test score and responses for each test item. 
Private-sector testing organizations would regularly transmit medical 
examiner application and test results data electronically to FMCSA for 
inclusion in a centralized, confidential database.
    (2) CMV Driver Examination Data: Once every calendar month, each

[[Page 73141]]

medical examiner listed on the NRCME would be required to transmit to 
FMCSA (via the Chief Medical Examiner) the following information about 
each CMV driver examined during the previous month: name, FMCSA 
numerical identifier, date of examination, an indication of the 
examination outcome (for example, ``medically qualified''), and date of 
expiration of the driver's medical certification, if issued. Data would 
be submitted electronically via a secure FMCSA-designated Web site, e-
mail address, or facsimile number. In order to be listed on and to 
continue participation in the NRCME, medical examiners would need to 
comply with this requirement on a monthly basis.
    (3) Medical Examination Reports and Medical Examiner's 
Certificates: This NPRM would require medical examiners to provide 
copies of Medical Examination Reports and medical examiner's 
certificates to authorized representatives of 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.
    Use of information collected: This proposal would support the 
information needs of the FMCSA in three different ways:
    (1) Medical Examiner Test Application Data: These data would allow 
for the matching of documentation with verification of identity and 
testing eligibility (for example, proof of State licensure, 
registration or certification that allows performance of medical 
examinations, and completion of training by an accredited training 
provider. This information would also be utilized to track participant 
test taking trends as well as provide respondents with test results and 
follow-up information.
    It is important to note that there is currently no mechanism for 
identifying medical examiners conducting CMV driver medical 
examinations. The size of this population, as well as characteristics 
related to their training and location, for example, is not known. This 
database would therefore serve as the only resource containing this 
information for all certified medical examiners in the United States.
    Ultimately, these data would therefore be used to provide CMV 
drivers with contact information for those medical professionals who 
have passed the certification test; that is, this information would 
provide the content for the actual NRCME listing. In some cases, this 
medical examiner information would be needed to address removals from 
the NRCME.
    (2) CMV Driver Examination Data: CMV driver examination data are 
intended to serve a monitoring function. First, these would be the only 
centralized, consistent national data that would enable FMCSA to link 
medical examiners to the examinations they have conducted. In addition, 
this would be the first national database that would, after several 
years of implementation, contain CMV driver medical examination 
certification outcomes.
    (3) Medical Examination Reports and Medical Examiner's 
Certificates: Medical Examination Reports and medical examiner's 
certificates must be available to an authorized representative of FMCSA 
or an authorized Federal, State or local enforcement agency 
representative in order to determine whether a medical examiner has 
issued a medical certificate to a driver who fails to meet the 
applicable FMCSA medical standards. Failure to properly apply FMCSA 
medical standards may result in removal from the NRCME. Medical 
examiner's certificates provide additional documentation to determine 
proper application of FMCSA medical standards by linking the medical 
examiner to both the medical examination and the driver medical 
certification decision, and to ensure the certification decision 
matches the information in the medical examination and the certificate 
is completed correctly.
    Respondents (including number of): The likely respondents to this 
proposed information requirement are 40,000 medical examiners from 
medical professions who are believed to conduct the majority of current 
CMV driver medical examinations (advanced practice nurses, doctors of 
chiropractic, doctors of osteopathy, medical doctors and physician 
assistants) 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 
medical examiner test application data every 6 years and updated 
information as needed, and would provide CMV driver examination data a 
maximum of 12 times per year. It is estimated that an average of 
approximately 13,333 medical examiners will apply to take the 
certification test annually for the first 3 years of NRCME 
implementation. It is estimated that one or more testing organizations 
will deliver the FMCSA medical examiner certification test to 13,333 
medical examiners annually for the first 3 years following 
implementation of the NRCME program. It is projected that medical 
examiners would file 4,600,000 medical examiner's certificates per year 
and that authorized representatives of FMCSA or authorized State or 
local enforcement agency representatives would request medical 
examiners 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 that the total annual burden hours for the 
collection of the medical examiner test 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 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 medical examiner 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 medical examiner 
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].
    The transmission of CMV driver examination data would require 
approximately 46,000 hours of medical examiner administrative personnel 
time on a yearly basis, consisting of 8,000 hours for report filing 
(40,000 registered medical examiners x 1 minute/60 minutes to file a 
report x 12 reports per year = 8,000 hours) and 38,000 hours for data 
entry (4,600,000 reports x 30 seconds/3600 seconds to enter each 
driver's examination data elements = approximately 38,000 hours). Total 
hours for report filing and data entry is 8,000 hours + 38,000 hours = 
46,000 hours]. It is estimated that it would take medical examiner 
administrative personnel 30 seconds to file the medical examiner's 
certificate. This would require approximately 38,000 hours of medical 
examiner administrative personnel time on a yearly basis [4,600,000 
examinations x 30 seconds/3600 seconds per certificate = 38,000 hours].
    It is estimated that it will take medical examiner administrative 
personnel 5 minutes to provide both the Medical Examination Report and 
the medical examiner's certificate to FMCSA or an

[[Page 73142]]

authorized State or local enforcement agency representative upon 
request, so this would require approximately 175 hours of 
administrative personnel time on a yearly basis [2,100 requests x 5 
minutes/60 minutes per response = 175 hours].
    The total estimated annual recordkeeping and time burden for these 
medical requirement components is approximately 86,397 hours.

The agency is soliciting comments to--

    (1) Evaluate whether the proposed information requirement is 
necessary for the proper performance of the functions of the Agency, 
including whether the information would have practical utility;
    (2) Evaluate the accuracy of the Agency's estimate of the burden;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology.
    Individuals and organizations may submit comments on the 
information collection requirement by January 30, 2009, and should 
direct them to the address listed in the ADDRESSES section of this 
document. Comments also should be submitted to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
New Executive Building, Room 10202, 725 17th Street, NW., Washington, 
DC 20053, Attention: Desk Officer for the Department of Transportation.
    According to the 1995 amendments to the Paperwork Reduction Act 
(implemented by 5 CFR 1320.8(b)(2)(vi)), an agency may not collect or 
sponsor the collection of information, nor may it impose an information 
collection requirement unless it displays a currently valid OMB control 
number. The OMB control number for this information collection would be 
published in the Federal Register, after the Office of Management and 
Budget approves it.

National Environmental Policy Act

    The Agency analyzed this proposed rule for the purpose of the 
National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et 
seq.) and determined under our environmental procedures Order 5610.1, 
issued March 1, 2004 (69 FR 9680), that this action requires an 
Environmental Assessment (EA) to determine if a more extensive 
Environmental Impact Statement (EIS) will be required. The 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 
result of the proposed actions. Although minor 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 roadway 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 have analyzed this proposed action under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution or Use. We have determined preliminarily that it would not 
be a ``significant energy action'' under that Executive Order because 
it would not likely have a significant adverse effect on the supply, 
distribution, or use of energy.

List of Subjects

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 proposes to amend title 
49, Code of Federal Regulations, parts 390 and 391, as follows:

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

    1. The authority citation for part 390 is revised to read as 
follows:

    Authority: 49 U.S.C. 508, 13301, 13902, 31132, 31133, 31136, 
31149, 31502, 31504, and sec. 204, Pub. L. 104-88, 109 Stat. 803, 
941 (49 U.S.C. 701 note); sec. 114, Pub. L. 103-311, 108 Stat. 1673, 
1677; sec. 217, Pub. L. 106-159, 113 Stat. 1748, 1767; and 49 CFR 
1.73.

    2. 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) Except as provided in paragraph (2) of this definition, for 
medical examinations conducted before [Date 3 years after the effective 
date of the final rule], 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 [Date 2 years 
after the effective date of the final rule] and for medical examination 
of persons employed by motor carriers who employ 50 or more CMV 
drivers, an individual certified by FMCSA and listed on the National 
Registry of Certified Medical Examiners in accordance with subpart D of 
this part.
    (3) For medical examinations conducted on and after [Date 3 years 
after the effective date of the final rule], an individual certified by 
FMCSA and listed on the National Registry of Certified Medical 
Examiners in accordance with subpart D of this part.
* * * * *
    3. Add subpart D, consisting of Sec. Sec.  390.101 through 390.115, 
to read as follows:
Subpart D--National Registry of Certified Medical Examiners
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

[[Page 73143]]

for listing the examiner on the FMCSA's National Registry of Certified 
Medical Examiners. The National Registry of Certified Medical Examiners 
program is designed to improve highway safety and driver health by 
requiring that medical examiners be trained and certified to determine 
effectively whether an interstate CMV driver meets FMCSA physical 
qualification standards under part 391 of this chapter. One component 
of the National Registry of Certified Medical Examiners program is the 
registry itself, which is a national database of names and contact 
information for medical examiners who are authorized by FMCSA to 
perform CMV driver medical examinations.


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 may 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) Have completed a training program that meets the requirements 
of Sec.  390.105.
    (3) Have passed the FMCSA medical examiner certification test 
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 contained in 
appendix A of this part.
    (b) To renew medical examiner certification a 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.
    (iii) Complies with section 508 of the Rehabilitation Act (29 
U.S.C. 794d).
    (b) Meets the core curriculum specifications established by FMCSA 
for medical examiner training. The curriculum must, at a minimum, 
include 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 driver and obtaining, reviewing, and 
documenting driver medical history, including prescription and over-
the-counter medications.
    (4) Performing, reviewing, and documenting the driver'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 driver about medications and non-
disqualifying medical conditions that require remedial care.
    (7) Determining driver certification outcome and period for which 
certification should be valid.
    (8) FMCSA reporting and documentation requirements.


Sec.  390.107  Medical examiner certification testing.

    An applicant for medical examiner certification or recertification 
must apply, in accordance with the minimum specifications identified in 
the list of application data elements in appendix A of this part, to a 
testing organization that meets the following criteria:
    (a) The testing organization has documented policies and procedures 
to:
    (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) The testing organization has submitted its documented policies 
and procedures as defined in paragraph (a) of this section to FMCSA; 
and agreed to future reviews by FMCSA to ensure compliance with the 
criteria listed in this section.


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

    Upon compliance with the requirements of Sec. Sec.  390.103-
390.107, FMCSA will issue to a medical examiner 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 and the 
listing on the National Registry of Certified Medical Examiners will 
expire 6 years after the date of issuance of the certification 
credential.


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 information submitted under 
Sec.  390.107 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 licensing, registration, or 
certification to perform physical examinations for each State in which 
the examiner performs examinations and completion of all training 
required by this section and Sec.  390.105, and make this documentation 
available to an authorized representative of the 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 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 2 years and no later than 3 years after the date 
of issuance of the medical examiner certification

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credential, complete periodic training as specified by FMCSA.
    (ii) No sooner than 5 years and no later than 6 years after the 
date of issuance of the medical examiner certification credential:
    (A) Complete periodic training as specified by FMCSA, except, in 
alternating 6 year periods, complete the training required by Sec.  
390.103(a)(2); and
    (B) Pass the test required by Sec.  390.103(a)(3).
    (b) FMCSA will issue a new medical examiner certification 
credential 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.

    The FMCSA may remove a medical examiner from the National Registry 
of Certified Medical Examiners. 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) The FMCSA finds the medical examiner has made errors or 
omissions, or finds other indications of improper certification in 
completed Medical Examination Reports or 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 of Medical Programs. Except as provided 
in paragraph (b) of this section, the Director will accept the request 
and the removal will become effective immediately. However, on and 
after the date of issuance of a notice of proposed removal from the 
National Registry, as described in paragraph (b) of this section, the 
Director will not approve the medical examiner's request for voluntary 
removal from the National Registry.
    (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.
    (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 of Medical Programs, 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, 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 to have 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 why an erroneous 
reason has been relied on in proposing the removal. The Director will 
review the explanation.
    (i) If the Director finds FMCSA has relied on a wholly erroneous 
reason for proposing removal from the National Registry, the Director 
will withdraw the notice of proposed removal and notify the medical 
examiner in writing of the determination. If the Director finds FMCSA 
has relied on a partly erroneous reason for proposing removal from the 
National Registry, the Director 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 
modifies a notice of proposed removal, the medical examiner must comply 
with this subpart and correct the deficiencies identified in the 
modified notice of proposed removal as described in paragraph (c)(2) of 
this section.
    (ii) If the Director finds FMCSA has not relied on an erroneous 
reason in proposing removal, the Director 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 
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 of Medical Programs 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. The Director 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 will notify the medical examiner in writing 
whether he or she has met the requirements to continue to be listed on 
the National Registry.
    (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. The Director will notify the medical examiner in 
writing that he or she has been removed from the National Registry.
    (3) At any time before a notice of proposed removal from the 
National Registry becomes final, the recipient of the notice of 
proposed removal and the Director 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

[[Page 73145]]

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.
    (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 of 
Medical Programs may immediately remove a medical examiner from the 
National Registry 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 
removed may apply to the Director of Medical Programs to be reinstated. 
The person must provide documentation showing compliance with all the 
requirements of Sec.  390.103(a) and completion of any additional 
corrective actions required in the notice of proposed removal. A person 
who has been voluntarily removed may be reinstated by the Director of 
Medical Programs after providing documentation showing proof of 
compliance with the requirements of Sec.  390.111.
    (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), or a removal is affirmed under paragraph (d), of this 
section, the person's listing is removed and 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.
    4. Add appendix A, Medical Examiner Application Data Elements, to 
part 390 to read as follows:

Appendix A of Part 390--Medical Examiner Application Data Elements

    The following minimum data elements must be included in the 
application for medical examiner certification as specified by Sec.  
390.107:
    1. Date of application.
    2. Full Name.
    3. Medical profession (Advanced Practice Nurse (APN), Doctor of 
Chiropractic (DC), Doctor of Osteopathy (DO), Medical Doctor (MD), 
Physician Assistant (PA), etc.).
    4. Job title, if applicable (e.g., Director of * * *, etc.).
    5. Current employer.
    6. Employer mailing address.
    7. Employer phone number.
    8. Employer fax number.
    9. Employer e-mail.
    10. Business address (street, city, state, and zip code, if 
different from employer mailing address; P.O. Box is not 
sufficient).
    11. Business phone number(s).
    12. Business fax number(s).
    13. Business e-mail.
    14. Medical license, certificate, or registration number(s) and 
State(s) where issued.
    15. Expiration date of State license(s), registration(s), or 
certification(s).
    16. Statement self-certifying completion of training required by 
Sec.  390.103(a) or (b).
    17. Date training completed.
    18. Training provider and address.
    19. Group that accredited the training.
    20. Type of certification: Initial--Recertification--
Reinstatement.
    21. Statement of capability and willingness to comply with FMCSA 
requirement to electronically transmit to FMCSA once every calendar 
month the following information about each person examined under 
part 391, subpart E, of this chapter:
     Name.
     FMCSA numerical identifier.
     Date of examination.
     An indication of whether the person was found to be 
medically qualified, medically unqualified, or temporarily 
disqualified.
     Date of expiration of medical examiner's certificate, 
if applicable.
    22. Statement agreeing to provide copies of certification of 
completion of training, and State license(s), certificate(s), or 
registration(s) to perform physical examinations to an authorized 
representative of FMCSA or to an authorized State or local 
enforcement agency representative upon request.
    23. Statement affirming all information provided is true.

PART 391--QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE 
(LCV) DRIVER INSTRUCTORS

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

    Authority: 49 U.S.C. 322, 504, 508, 31133, 31136, 31149, and 
31502; Sec. 4007(b) of Pub. L. 102-240 (105 Stat. 2152); Sec. 114, 
Pub. L. 103-311 (108 Stat. 1673, 1677); and 49 CFR 1.73.

    6. 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.

    (a) On and after [Date 2 years after the effective date of the 
final rule] each medical examination required under this subpart for 
persons who are employed by motor carriers that employ 50 or more 
drivers of CMVs, as defined in Sec.  390.5 of this chapter, must be 
conducted by a medical examiner who is listed on the National Registry 
of Certified Medical Examiners.
    (b) On and after [Date 3 years after the effective date of the 
final rule] 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.
    7. Amend Sec.  391.43 by revising paragraph (a), paragraph (g), and 
the introductory text and the form in paragraph (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 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 is physically 
qualified to drive 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 one copy to the person who 
was examined and one copy to the motor carrier that employs the person 
examined.
    (3) Once every calendar month, the medical examiner must 
electronically transmit to the FMCSA Medical Program the following 
information for each Medical Examination Report completed during the 
previous month, for any driver who is required to be examined by a 
medical examiner listed on the National Registry of Certified Medical 
Examiners:

[[Page 73146]]

    (i) Driver's name.
    (ii) Driver's FMCSA numerical identifier.
    (iii) Date of the examination.
    (iv) Whether the person was found to be medically qualified, 
medically unqualified, or temporarily disqualified.
    (v) Date of expiration of medical examiner's certificate, if 
applicable.
    (h) The medical examiner's certificate shall be substantially in 
accordance with the following form. Existing forms may be used until 
current printed supplies are depleted or until [Date 4 years after the 
effective date of the final rule], whichever occurs first.
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[GRAPHIC] [TIFF OMITTED] TP01DE08.027

    (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 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 the FMCSA or an authorized State or 
local enforcement agency representative, within 48 hours after the 
request is made.


[[Page 73147]]


    Issued on: November 20, 2008.
John H. Hill,
Administrator.
 [FR Doc. E8-28172 Filed 11-28-08; 8:45 am]

BILLING CODE 4910-EX-C
