Process for Department of Veterans Affairs (VA) Physicians To Be Added to the National Registry of Certified Medical Examiners

Process for Department of Veterans Affairs (VA) Physicians To Be Added to the National Registry of Certified Medical Examiners

Process for Department of Veterans Affairs (VA) Physicians To Be Added to the National Registry of Certified Medical Examiners

T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
1 December 2016

[Federal Register Volume 81, Number 231 (Thursday, December 1, 2016)]
[Proposed Rules]
[Pages 86673-86684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28746]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 390 and 391

[Docket No. FMCSA-2016-0333]
RIN 2126-AB97

Process for Department of Veterans Affairs (VA) Physicians To Be
Added to the National Registry of Certified Medical Examiners

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: FMCSA proposes amendments to the Federal Motor Carrier Safety
Regulations (FMCSRs) to establish an alternate process for qualified
physicians employed in the Department of Veterans Affairs (VA)
(qualified VA physicians) to be listed on the Agency's National
Registry of Certified Medical Examiners (National Registry). After
training and testing, they become certified VA medical examiners that
can perform medical examinations of commercial motor vehicle (CMV)
operators who are military veterans, and issue Medical Examiner's
Certificates (MECs) to those same operators as required by the Fixing
America's Surface Transportation (FAST) Act.

DATES: Comments on this notice must be received on or before January 3,
2017.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2016-0333 using 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-

[[Page 86674]]

140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays.
Fax: 202-493-2251.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section for instructions on submitting
comments, including collection of information comments for the Office
of Information and Regulatory Affairs of the Office of Management and
Budget.

FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Medical
Programs Division, MC-PSP, Federal Motor Carrier Safety Administration,
1200 New Jersey Avenue SE., Washington, DC 20590-0001 by telephone at
202-366-4001 or by email, fmcsamedical@dot.gov. If you have questions
on viewing or submitting material to the docket, contact Docket
Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

A. Submitting Comments

If you submit a comment, please include the docket number for this
NPRM (Docket No. FMCSA-2016-0333), indicate the specific section of
this document to which each comment applies, and provide a reason for
each suggestion or recommendation. You may submit your comments and
material online or by fax, mail, or hand delivery, but please use only
one of these means. FMCSA recommends that you include your name and a
mailing address, an email address, or a phone number in the body of
your document so that FMCSA can contact you if there are questions
regarding your submission.
To submit your comment online, go to http://www.regulations.gov,
put the docket number, FMCSA-2016-0333, in the keyword box, and click
``Search.'' When the new screen appears, click on the ``Comment Now!''
button and type your comment into the text box on the following screen.
Choose whether you are submitting your comment as an individual or on
behalf of a third party and then submit.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments. FMCSA may issue a final rule at any time after the close of
the comment period.

B. Viewing Comments and Documents

To view comments, as well as any documents mentioned in this
preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2016-0333, in the
keyword box, and click ``Search.'' Next, click the ``Open Docket
Folder'' button and choose the document to review. If you do not have
access to the Internet, you may view the docket online by visiting the
Docket Management Facility in Room W12-140 on the ground floor of the
DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal
holidays.

C. Privacy Act

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dottransportation.gov/privacy.

D. Advance Notice of Proposed Rulemaking Not Required

Under the provisions of 49 U.S.C. 31136(f) and (g) (added by
section 5202 of the FAST Act), FMCSA is required to publish an advance
notice of proposed rulemaking when a rulemaking is likely to lead to
the promulgation of a major rule, unless the Agency finds good cause
that an ANPRM is impracticable, unnecessary, or contrary to the public
interest. This NPRM is not subject to these provisions, because it is
not likely to lead to the promulgation of a major rule.

II. Executive Summary

A. Purpose of the Proposed Rule

The purpose of this proposed rule is to amend the Federal Motor
Carrier Safety Regulations (FMCSRs) to establish a process for
qualified physicians employed in the Department of Veterans Affairs
(VA) (qualified VA physicians) to be listed on the Agency's National
Registry of Certified Medical Examiners (National Registry). After
training and testing they become certified VA medical examiners that
can perform medical examinations of commercial motor vehicle (CMV)
operators who are military veterans, and issue Medical Examiner's
Certificates (MECs) to those same operators as required by the Fixing
America's Surface Transportation Act (FAST Act), Public Law 114-94,
div. A, title V, Sec. 5403, Dec. 4, 2015, 129 Stat. 1548 (set out as a
note to 49 U.S.C. 31149).
As stated in the FAST Act, qualified VA physicians must (a) be
employed in the Department of Veterans Affairs; (b) be familiar with
FMCSA's standards for, and physical requirements of, a CMV operator
requiring medical certification; and (c) have never ``acted
fraudulently'' with respect to such certification. Qualified VA
physicians would be listed on the National Registry after completing
training and testing provided by FMCSA and delivered through a web-
based training system operated by the VA, and, upon successful
completion, be allowed to conduct medical examinations of and issue
MECs only to CMV drivers who are veterans enrolled in the health care
system established under 38 U.S.C. 1705(a) that operate a CMV (veteran
operator).

B. Summary of Major Provisions

Through this rulemaking, FMCSA would establish an alternate process
for qualified VA physicians to complete comparable training and testing
developed by FMCSA and delivered through the VA's Web-based training
system prior to being listed on the National Registry. This is an
alternative to VA physicians obtaining training and testing through the
private sector.
Qualified VA physicians are subject to the same provisions of 49
CFR 390 subpart D, except for the differences in the eligibility,
training, and testing requirements for any other healthcare
professional seeking Medical Examiner (ME) certification. Qualified VA
physicians must be either a doctor of medicine or doctor of osteopathy
currently employed in the VA; be licensed, certified, or registered in
accordance with applicable State laws and regulations to perform
physical examinations; be familiar with FMCSA's standards for, and
physical requirements of, a CMV operator requiring medical
certification by completing training provided by FMCSA and delivered
through a web-based training system operated by the VA; pass the
medical examiner certification test provided by FMCSA and administered
through a web-based training system operated by the VA; and have never
``acted fraudulently'' with respect to such certification of a CMV
operator, including by fraudulently

[[Page 86675]]

awarding a medical certificate. Qualified VA physicians register on the
National Registry System, complete the training and testing provided by
FMCSA and delivered through a web-based training system operated by the
VA, and after fulfilling the requirements would be listed on the
National Registry. Once certified and listed on the National Registry,
qualified VA physicians become certified VA MEs.\1\ This will allow
such physicians to conduct medical examinations of and issue MECs only
to veteran operators enrolled in the VA health care system.
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\1\ For clarification, FMCSA is using the term qualified VA
physician to define VA physician prior to becoming certified and
listed on the National Registry while the term certified VA medical
examiner refers to the individual who has been certified and listed
on the National Registry.
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If a certified VA medical examiner is no longer employed in the VA,
but would like to remain listed on the National Registry, the physician
must update his or her registration information within 30 days or
submit such a change in registration information prior to conducting
any physical examination of a CMV driver or issuing any medical
examiner's certificates. Therefore, after the registration is updated
the certified VA medical examiner becomes a certified medical examiner
who may perform physical examinations and issue certificates to any CMV
driver.

C. Benefits and Costs

The Agency estimates that costs of the proposed rule would be
minimal, with an annualized value of $101,739 at a 7% discount rate.
The costs would consist of Federal government information technology
(IT)-related expenses, Help Desk operating costs, and curriculum and
testing development. Insufficient data are available to quantify the
benefits of the proposed rule, as FMCSA does not know how many
qualified VA physicians will complete the certification process. FMCSA
estimates the per-physician savings (for certifying qualified VA
physicians seeking to become certified VA MEs listed on the National
Registry) at $614, resulting from the use of online-only training and
testing that eliminates travel costs. Non-quantifiable benefits may
result from the increased availability for veteran operators to receive
their DOT physical.

III. Abbreviations and Acronyms

CDL Commercial Driver's License
CLP Commercial Learner's Permit
CMV Commercial Motor Vehicle
DOT Department of Transportation
FMCSA Federal Motor Carrier Safety Administration
FMCSR Federal Motor Carrier Safety Regulations
FAST Act Fixing America's Surface Transportation Act
FR Federal Register
IRFA Initial Regulatory Flexibility Analysis
IT Information Technology
ME Medical Examiners
MEC Medical Examiner's Certificates
MER Medical Examination Report
National Registry National Registry of Certified Medical Examiners
RFA Regulatory Flexibility Act
Sec. Section symbol
SDLA State Driver Licensing Agency
U.S.C. United States Code
VA Department of Veterans Affairs

IV. Legal Basis for the Rulemaking

The legal authority for this proposed rule is derived from 49
U.S.C. 31136 and 31149, as supplemented by section 5403 of the FAST
Act. Section 31136(a)(3) requires that operators of CMVs be physically
qualified to operate safely, as determined and certified by an ME
listed on the National Registry. Section 31149(d) requires FMCSA to
ensure that MEs listed on the National Registry are qualified to
perform the physical examinations of CMV operators, and to certify that
such operators meet the physical qualification standards. In order to
ensure that MEs are qualified for listing on the National Registry, 49
U.S.C. 31149(c)(1)(D) requires them to receive training based on core
curriculum requirements developed by FMCSA in consultation with the
Medical Review Board (established under 49 U.S.C. 31149(a)), to pass a
certification examination, and to demonstrate an ability to comply with
reporting requirements established by FMCSA.
Section 5403 of the FAST Act supplements the general provisions of
section 31149 by providing for physicians employed in the VA to be
listed on the National Registry and to perform the physical examination
of veterans who require a physical examination and a medical
certificate to operate a CMV. In order to be qualified for listing on
the National Registry, such physicians must be familiar with the
physical standards and requirements for operators of CMVs. They must
also have never been found to have acted fraudulently with respect to a
medical examiner's certificate for a CMV operator. Certified VA MEs on
the National Registry may perform examinations on, and issue medical
examiner's certificates to, only veterans enrolled in the health care
system operated by the VA.
There is general authority to adopt regulations to implement these
provisions from both 49 U.S.C. 31136(a) and 49 U.S.C. 31149(e). Such
authority has been delegated to the Administrator of FMCSA by 49 CFR
1.87.

V. Background

A. National Registry of Certified MEs

Prior to the National Registry, there was no required training
program for the medical professionals who conduct driver physical
examinations, although the FMCSRs required MEs to be knowledgeable
about the regulations (49 CFR 391.43(c)(1)). No specific knowledge of
the Agency's physical qualification standards was required or verified
by testing. As a result, some of the medical professionals who
conducted these examinations were unfamiliar with FMCSA's physical
qualification standards and how to apply them. These medical
professionals may have also been unaware of the mental and physical
rigors that accompany the occupation of CMV drivers, and how various
medical conditions (and the therapies used to treat them) can affect
the ability of drivers to safely operate CMVs.
In 2012, FMCSA issued a final rule establishing the National
Registry (77 FR 24104, April 20, 2012) to improve highway safety and
driver health by requiring that MEs be trained and certified so they
can effectively determine whether a CMV driver's medical fitness for
duty meets FMCSA's standards. The program implements the requirements
of 49 U.S.C. 31149 and requires MEs who conduct physical examinations
for CMV drivers to meet the following criteria: (1) Complete certain
training concerning FMCSA's physical qualification standards; (2) pass
a test to verify an understanding of those standards; and (3) maintain
and demonstrate competence through periodic training and testing.
Following the establishment of the National Registry, the FMCSRs were
amended to require drivers to be examined and certified by only those
MEs listed on the Agency's National Registry, and only MECs issued by
MEs listed on the National Registry will be acceptable as valid proof
of medical certification.
To be listed on the National Registry, MEs are required to attend
an accredited training program and pass a certification test to assess
their knowledge of FMCSA's physical qualifications standards and how to
apply them to drivers. To maintain their certification and listing on
the National Registry, MEs are required to complete training at five-
year intervals and to complete training and pass a recertification test
every 10 years.

[[Page 86676]]

Certified MEs listed on the National Registry who conduct medical
examinations of CMV drivers are required to submit on a monthly basis
via their individual password-protected National Registry account a CMV
Driver Medical Examination Results Form, MCSA-5850, to FMCSA for each
physical examination conducted. Certified MEs also are required to
retain a copy of the Medical Examination Report (MER) Form, MCSA-5875,
and MEC, MCSA-5876, for all drivers they examine and certify, for at
least three years from the examination date. The MER Form, MCSA-5875,
lists the driver's health history and specific results of the various
medical tests and assessments used to determine if a driver meets the
physical qualification standards set forth in 49 CFR part 391, subpart
E. In addition, certified MEs are required to issue a MEC, Form MCSA-
5876, to those drivers who they determine meet FMCSA's physical
qualification standards.

B. Medical Examiner's Certification Integration

On April 23, 2015, FMCSA published the Medical Examiner's
Certification Integration final rule (80 FR 22790), a follow-on rule to
the National Registry, which requires MEs performing physical
examinations of CMV drivers to use a newly developed MER Form, MCSA-
5875, in place of the former MER Form and to use Form MCSA-5876 for the
MEC. In addition, beginning June 22, 2018, this rule will require
certified MEs to report results of all CMV drivers' physical
examinations performed (including the results of examinations where the
driver was found not to be qualified) to FMCSA by midnight (local time)
of the next calendar day following the examination. For commercial
learner's permit (CLP) and commercial driver's license (CDL)
applicants/holders, FMCSA will electronically transmit driver
identification, examination results, and restriction information from
the National Registry to the State Driver's Licensing Agencies (SDLAs).
The Agency will also electronically transmit medical variance
information for all CMV drivers to the SDLAs. MEs will still be
required to provide drivers of CMVs that do not require a CDL/CLP with
an MEC, Form MCSA-5876.

VI. Discussion of Proposed Rule

A. Overview

As required by 5403 of FAST Act, FMCSA consulted with the Secretary
of Veterans Affairs and is now proposing to establish a process for
qualified VA physicians employed in the VA to be included on FMCSA's
National Registry, perform medical examinations of CMV drivers who are
veteran operators, and issue MECs to qualified drivers. Qualified VA
physicians would be listed on the National Registry after registering
on the National Registry System, and completing training and testing
provided by FMCSA and delivered through a web-based training system
operated by the VA. Upon successful completion, certified VA MEs will
be allowed to conduct medical examinations of, and issue MECs only to,
veteran operators enrolled in the VA health care system. In addition to
the requirements proposed, certified VA MEs will be subject to some of
the other provisions of 49 CFR 390 subpart D as are all other certified
MEs listed on the National Registry.

B. Eligibility

National Registry eligibility requirements for medical examiner
certification require that the person 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.
As required by the statute, this proposed rule limits eligibility of
qualified VA physicians to only those who are either doctors of
medicine or doctors of osteopathy and employed in the VA.
Consistent with the FAST Act, this proposed rule adds the
requirement that qualified VA physicians must never have ``acted
fraudulently'' with respect to such certification of a CMV operator,
including fraudulently awarding a MEC.
This proposed rule has different licensure requirements in that
qualified VA physicians may be able to practice in additional States
without being licensed, certified, or registered in each State. In
accordance with the provisions of 38 U.S.C. 7402(a) and (b)(1), the VA
Handbook 5005/85,\2\ Staffing (Qualification Standard for the
Appointment of Physicians, GS-0602, in VA), that provides the physician
qualification standards, states that physicians must possess a current,
full and unrestricted license to practice medicine or surgery in a
State, Territory, or Commonwealth of the United States, or in the
District of Columbia, and must maintain current registration in the
State of licensure if it is a requirement for continuing active,
current licensure. The VA Handbook does not specify that physicians
must be licensed in each State where they practice medicine. Assuming
they meet licensure requirements prescribed by statute and VA policy,
they may practice at any VA facility, regardless of its location or the
practitioner's State of licensure. Therefore, this proposed rule would
require qualified VA physicians who become certified to continue to be
licensed, certified, or registered in a State to perform physical
examinations. Similarly, this proposed rule would require qualified VA
physicians who become certified to maintain documentation of State
licensure, registration, or certification to perform physical
examinations.
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\2\ http://www1.va.gov/vapubs/search_action.cfm?dType=2,
accessed September 20, 2016.
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C. Training Requirements

Instead of completing a training program conducted by a private
training organization that meets the requirements of 49 CFR 390.105,
including providing training based on the core curriculum
specifications developed by FMCSA, qualified VA physicians must become
familiar with FMCSA's standards for, and physical requirements of, a
CMV operator requiring medical certification. This would be
accomplished by completing training provided by FMCSA and delivered
through a Web-based training system operated by the VA. Since the
training is being provided by FMCSA, it will be comparable to the core
curriculum guidelines provided to private training organizations.\3\
The training would be an interactive, online training course and would
include at least the following: (1) An overview of all FMCSA medical
standards; (2) an overview of how the Federal medical exemption
programs factor into the qualification decision; (3) an administrative
component that includes an overview of the driver examination forms;
and (4) information regarding the use of the National Registry and the
National Registry System.
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\3\ See 78 FR 28403 (May 17, 2011) and https://www.regulations.gov/document?D=FMCSA-2008-0363-0096.
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D. Testing Requirements

Instead of completing the testing requirements of 49 CFR 390.107 by
using a testing organization that has been approved by FMCSA to deliver
the test, qualified VA physicians must pass a comparable certification
test provided by FMCSA and administered through a Web-based training
system operated by the VA. After completing the training described
above, qualified VA physicians would be required to take a test and
receive a passing grade. The grade received by each qualified VA

[[Page 86677]]

physician would be electronically transmitted from the Web-based
training system to the National Registry System for posting to the
physician's National Registry account.

E. Maintaining Certification

One of the requirements for maintaining certification and continued
listing on the National Registry is that certified MEs must continue to
be licensed, certified, or registered, and authorized to perform
physical examinations, in accordance with applicable State laws and
regulations of each State in which the ME performs examinations. This
proposed rule would require qualified VA physicians who become
certified to continue to be licensed, certified, or registered in a
State to perform physical examinations.
Another requirement for maintaining certification and continued
listing on the National Registry is that certified MEs must maintain
documentation of State licensure, registration, or certification to
perform physical examinations for each State in which the ME performs
examinations. Because certified VA medical examiners may be able to
practice in additional States without being licensed, certified, or
registered in each State, this proposed rule would only require
certified VA medical examiners to maintain documentation of State
licensure, registration, or certification to perform physical
examinations, again without reference to each State in which the
physician performs examinations.
If a certified VA medical examiner is no longer employed in the VA,
but would like to remain listed on the National Registry, the physician
must update his or her registration information within 30 days or
submit such a change in registration information prior to conducting
any physical examination of a CMV driver or issuing any medical
examiner's certificates. Pursuant to its broad authority under 49
U.S.C. 31149(c)(1)(D), FMCSA proposes to recognize the comparable
training received by qualified VA physicians to be suitable for such
physicians to continue to be listed on the National Registry. But
physicians wishing to continue such listing must be licensed to perform
physical examinations in any State where examinations of CMV drivers
will be conducted. Therefore, after the registration is updated the
previously certified VA medical examiner becomes a certified medical
examiner who may perform physical examinations and issue certificates
to any CMV driver.

F. Performing DOT Medical Examinations

The National Registry regulations allow for certified MEs to
perform examinations of all drivers requesting a DOT medical
examination. This proposed rule would limit certified VA medical
examiners, to conducting examinations of only veteran operators, while
they are employed in the VA. This process would provide veteran
operators with the option of utilizing their enrollment in the VA
healthcare system to obtain their MECs.

G. Proposed Changes to Certification Requirements for All MEs

After several years of evaluating the operation of the National
Registry System, FMCSA proposes changes to the existing requirements
for becoming a certified ME. FMCSA proposes to add a requirement that
to receive ME certification from FMCSA, prior to taking the training
and testing, a person must register on the National Registry System and
receive a unique identifier. This has always been how the National
Registry System has operated and is the first step in becoming a
certified ME but was not specifically included in the regulation.
Additionally, FMCSA proposes to remove the prohibition against an
applicant taking the test more than once every 30 days. Since the
regulation does not specify any actions that must be taken within the
30-day waiting period (such as additional training), the Agency
proposes to remove the provision.

VII. Section-by-Section Analysis

Part 390

Section 390.5 Definitions
The Agency proposes adding new definitions for the terms
``certified VA medical examiner,'' ``qualified VA physician'' and
``veteran operator.''
Section 390.103 Eligibility Requirements for Medical Examiner
Certification
As a whole, FMCSA has reorganized and restructured the paragraphs
of this section to introduce separate eligibility requirements for a
qualified VA physician. Specifically, the Agency adds the word
``either'' after ``must'' in paragraph (a). Additionally, it adds a new
paragraph (a)(1)(ii). Third, FMCSA adds a new paragraph (a)(2) and
deletes from (a)(3) the sentence stating ``An applicant must not take
the test more than once every 30 days.'' Finally, the Agency adds the
citation ``or (a)(2)'' to paragraph (b).
Section 390.105 Medical Examiner Training Programs
The Agency adds a new paragraph (c) setting out the training
requirements for qualified VA physicians.
Section 390.107 Medical Examiner Certification Testing
FMCSA adds a new paragraph (e) setting out the testing requirements
for qualified VA physicians.
Section 390.111 Requirements for Continued Listing on the National
Registry of Certified Medical Examiners
In paragraph (a)(2), FMCSA creates new paragraphs (i) and (ii). In
new (a)(2)(i), the Agency deletes the word ``application'' and replaces
it with ``registration.'' Additionally, in this paragraph, the cross-
reference is changed to ``Sec. 390.103(a)(1)(ii).'' Finally, the
Agency adds a new paragraph (a)(2)(ii) that states what happens when a
certified VA medical examiner is no longer employed by the VA.
FMCSA divides both paragraphs (a)(3) and (a)(4) into two separate
paragraphs: paragraph (i) with the existing requirements and new
paragraph (ii) with the new requirements for certified VA MEs. In the
new paragraph (a)(4)(i), FMCSA adds ``and (b)'' after Sec. 390.105(a).
In paragraph (a)(5)(ii)(B), the cross-reference is updated to read
``Sec. 390.103(a)(1)(iv) or (a)(2)(ii).''
Finally, in paragraph (b), FMCSA changes the reference from ``(4)''
to ``(5).''
Section 390.115 Procedures for Removal From the National Registry of
Certified Medical Examiners
In paragraph (d)(2)(ii), the Agency changed the cross-reference to
read ``Sec. 390.103(a)(1)(ii).'' Additionally, paragraph (d)(2)(v) is
redesignated as (d)(2)(vi) and the Agency inserts new language for
(d)(2)(v).
In paragraph (f)(2), the cross-reference is changed to read ``Sec.
390.103(a)(1)(ii).'' Paragraph (f)(4) is divided into two separate
paragraphs: (i) With the existing requirements and new paragraph (ii)
with the new requirements for certified VA MEs.

Part 391

Section 391.43
Paragraph (b) is revised by adding ``Exceptions. (1)'' before ``A
licensed optometrist'' and dividing the paragraph into two separate
paragraphs: Paragraph (1) relating to an optometrist and new paragraph
(2) relating to veteran operators.

[[Page 86678]]

VIII. Regulatory Analyses

A. E.O. 12866 (Regulatory Planning and Review and DOT Regulatory
Policies and Procedures as Supplemented by E.O. 13563)

This proposed rule is not a significant regulatory action under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011). It is
also not significant within the meaning of DOT regulatory policies and
procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February
26, 1979) and does not require an assessment of potential costs and
benefits under section 6(a)(3) of that Order. Therefore, the Office of
Management and Budget has not reviewed the proposed rule under that
Order. However, as required by 49 U.S.C. 31136(c)(2)(A), the Agency
will consider the cost and benefits of this proposed rule. The Agency
estimates the economic benefits and costs of the proposed rule would be
less than $100 million annually.
The objective of the proposed rule is to develop a direct process
to allow qualified VA physicians employed in the VA to perform physical
examinations for veteran operators and to list such physicians on the
National Registry. Absent this proposed rule, qualified VA physicians
may choose to become certified MEs listed on the National Registry;
however, the resource and qualification burden to do so is greater than
under the proposed rule. There are just 10 VA physicians certified and
listed as MEs on the National Registry under the current process, a
small fraction of the 49,943 listed MEs.\4\ The Agency lacks data to
estimate whether the proposed rule would impact the number of qualified
VA physicians who would obtain certification as certified VA MEs;
however, as this proposed rule reduces the cost to do so, the Agency
assumes that this number would increase or, at minimum, remain constant
relative to the baseline.
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\4\ A total of 25 medical professionals employed in the VA are
listed on the National Registry as of September 16, 2016; of these,
10 are physicians. Nationwide, a total of 49,943 medical
professionals are listed on the National Registry as of September
12, 2016. See https://nationalregistry.fmcsa.dot.gov/NRPublicUI/home.seam (Accessed September 16, 2016).
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A detailed list of requirements to become a certified ME is in
Sec. 390.103. The three requirements are:
Must be licensed, certified, or registered according to
State laws and regulations to perform physical examinations;
Must complete required training from a training
organization;
Must pass the medical examiner certification test at an
FMCSA-approved testing center.
The requirements are modified by the proposed rule in order to make
training and testing readily accessible to qualified VA physicians. In
summary, the quantifiable benefits and costs of the proposed rule are:
(1) Benefits in the form of cost savings for qualified VA physicians
seeking to become certified VA MEs on the National Registry, through
reductions in time and travel expenses; (2) costs associated with the
development of an online training and testing module, and (3)
information technology (IT) tasks required to construct an interface
between the National Registry System and VA's web-based training
system. The interface will provide a seamless transfer of completed
training and testing information for each registered qualified VA
physician to be listed on the National Registry.
To estimate the benefits resulting from cost savings of the
proposed rule, the Agency utilized estimated health care professionals'
ME training and testing-related travel costs from the December 2011
regulatory evaluation of the National Registry final rule.\5\ For the
evaluation of the proposed rule, those costs are adjusted to 2015
dollars in order to subsequently estimate the reduction in those costs
attributable to the proposed rule. In the aforementioned 2011
regulatory evaluation, the Agency estimated that 50 percent of health
care professionals seeking to become certified MEs will complete the
required training and testing online, while the remaining 50 percent
will participate in classroom-based training. At present, there are no
testing providers offering online testing. Adjusting for a 50/50 online
vs. classroom split for training and the current absence of online
testing, FMCSA estimates that in the baseline, a qualified VA physician
seeking to become a certified VA ME would, on average, incur 4.5 hours
of travel time costs and 105 miles of vehicle mileage expenses.\6\
Under the proposed rule, training and testing for qualified VA
physicians will be online-only, using the VA's web-based training
system. This eliminates the travel time costs and the vehicle mileage
costs that would otherwise be incurred in the absence of the proposed
rule. Four and a half hours of travel time per participating qualified
VA physician would be saved. The Bureau of Labor Statistics (BLS)
Occupational Employment Statistics, May 2015, data indicate the
weighted average hourly wage for general practitioners, internists,
physicians, and surgeons is $93.96.\7\ Adjusting this value for fringe
benefits using data from the BLS Employer Costs for Employee
Compensation database, a fringe benefit markup of 31 percent is
applied, resulting in an hourly valuation of $123.09, rounded to $123
for purposes of this analysis.\8\ At an average of 4.5 hours of travel
time saved per participating qualified VA physician, the proposed rule
would provide a per-physician savings of $554 ($553.50 = 4.5 x $123,
rounded to the nearest whole number).
---------------------------------------------------------------------------

\5\ The 2011 regulatory evaluation can be accessed at https://www.regulations.gov/document?D=FMCSA-2008-0363-0115 (Accessed
September, 6, 2016).
\6\ 4.5 hours assumes 3 hours roundtrip travel for training
(incurred by 50% of qualified VA physicians) and 3 hours of
roundtrip travel for testing (for 100% of qualified VA physicians).
4.5 hours = (3 x 0.50 + 3 x 1.0). 105 miles of travel by vehicle
assumes a 70-mile roundtrip distance for training (incurred by 50%
of qualified VA physicians) and a 70-mile roundtrip distance for
testing (incurred by 100% of qualified VA physicians). 105 = (70 x
0.50 + 70 x 1.0). Distance and time inputs are consistent with those
in the 2011 regulatory evaluation of the National Registry final
rule.
\7\ See http://www.bls.gov/oes/current/oes_nat.htm (Accessed
September 6, 2016).
\8\ The 31 percent fringe benefit markup is obtained from BLS
series ``All Civilian Total benefits for Professional and related
occupations; Percent of total compensation'' and corresponds to the
Q1 2016 value.
---------------------------------------------------------------------------

FMCSA separately estimates the cost savings resulting from the
average reduction of 105 miles of travel per physician subsequent to
the proposed rule. Consistent with the approach of the 2011 regulatory
evaluation for the National Registry final rule, the Agency monetizes
this benefit using the standard Internal Revenue Service (IRS) mileage
rate. The 2015 standard IRS mileage rate is 57.5 cents per mile.\9\ By
this measure, the per-physician travel expense savings is $60 ($60 =
57.5 cents per mile x 105 miles, rounded to the nearest whole number).
---------------------------------------------------------------------------

\9\ See https://www.irs.gov/tax-professionals/standard-mileage-rates/ (Accessed September 21, 2016).
---------------------------------------------------------------------------

The total quantifiable benefit of the proposed rule (per qualified
VA physician seeking to become a certified VA ME) is estimated to be
$614. This estimate is the sum of the projected savings of $554 in
travel time costs and $60 in travel expenses.
Participation of qualified VA physicians in the National Registry
is voluntary. It is important to note that the cost savings to the
Federal government are specific to the elimination of time and travel
expenses

[[Page 86679]]

associated with initial ME certification training and testing
requirements, and not to subsequent refresher training and
recertification testing.\10\
---------------------------------------------------------------------------

\10\ 49 CFR 390.111(a)(5)(i) and (ii) require MEs to complete
periodic training every 5 years after the date of issuance of their
credential, and complete training and testing no later than 10 years
after the date of issuance of their credential.
---------------------------------------------------------------------------

There may also be non-quantifiable benefits of the proposed rule to
veteran operators if qualified VA physicians' participation in the
National Registry increases the availability of and access to certified
VA MEs. This may reduce waiting periods for appointments for veteran
operators enrolled in the VA health care system. Shorter waiting
periods may expedite a veteran operator's ability to begin driving for
personal income. Also, the potential addition of qualified VA
physicians to the list of certified MEs in closer proximity to a
veteran operator's residence may reduce the cost of travel time and the
use of a personal vehicle for those veteran operators seeking to be
examined by a certified VA ME.\11\ The Agency lacks data on the number
of veterans enrolled in the VA healthcare system now, or in the future,
who might take advantage of this benefit, or their proximity to a VA ME
who might be added to the National Registry under this proposed rule.
Therefore, FMCSA is unable to quantify this benefit of the proposed
rule.
---------------------------------------------------------------------------

\11\ The geographic diversity of VA medical professionals listed
on the National Registry is limited in scope and number. The 25 VA
practitioners listed on the National Registry are located in 16
states. Of these VA practitioners, a total of 13 are located in
California (2), Colorado (4), North Dakota (3) and Wisconsin (4).
See https://nationalregistry.fmcsa.dot.gov/NRPublicUI/home.seam
(Accessed September 16, 2016).
---------------------------------------------------------------------------

The costs of the proposed rule are strictly IT systems-related and
will be borne by the Federal government. These costs consist of: (1)
Development of an online medical examiner certification training and
testing module for qualified VA physicians; (2) development and
maintenance of an interface between the VA's web-based training system
and the National Registry System so that qualified VA physicians'
certification training and test results can be transmitted to the
National Registry; and (3) operation of the National Registry Help Desk
to assist qualified VA physicians with registration for, and completion
of, the online training and testing. The VA and FMCSA are responsible
for developing the interface between their respective IT systems.
FMCSA has executed a contract with consultants who will develop the
online curriculum. The training module will include a test at the end
to ensure that qualified VA physicians seeking to become certified VA
MEs complete and fully understand the standards for, and physical
requirements of, a CMV operator. The results of the test will be posted
to his or her National Registry account. The estimated cost of this
contract is $84,138.
The IT system developer will be responsible for modifying the
National Registry System so it will be able to accept VA physicians'
training and test results from the VA's web-based training system and
post results to each qualified VA physician's National Registry
account. The contract is for $128,675. Presently, FMCSA assumes that
the VA's costs of interface development are the same.
The National Registry Help Desk contractor will staff the National
Registry Help Desk to provide technical support to qualified VA
physicians going through the National Registry registration and
certification process and respond to telephone, written, and email
inquiries regarding National Registry certification from qualified VA
physicians, veterans, motor carriers, and other interested parties.
FMCSA estimates costs for the first year of the contract are $46,200
and $57,750 for the second year. Help Desk costs are assumed to be
constant at $57,750 for the remaining eight years of the forecast
period.

Table 1--Estimated Information Technology and Help Desk Costs
[in 2015$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
FMCSA
Year Curriculum interface Help desk DVA interface Total Total (3% Total (7%
development development support development (undiscounted) discount rate) discount rate)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2018.................................... $84,138 $129,000 $46,200 $129,000 $388,338 $388,338 $388,338
2019.................................... 0 0 57,750 0 57,750 56,068 53,972
2020.................................... 0 0 57,750 0 57,750 54,435 50,441
2021.................................... 0 0 57,750 0 57,750 52,849 47,141
2022.................................... 0 0 57,750 0 57,750 51,310 44,057
2023.................................... 0 0 57,750 0 57,750 49,816 41,175
2024.................................... 0 0 57,750 0 57,750 48,365 38,481
2025.................................... 0 0 57,750 0 57,750 46,956 35,964
2026.................................... 0 0 57,750 0 57,750 45,588 33,611
2027.................................... 0 0 57,750 0 57,750 44,261 31,412
---------------------------------------------------------------------------------------------------------------
10-Year Total....................... 84,138 129,000 565,950 129,000 908,088 837,986 764,593
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized.............................. .............. .............. .............. .............. .............. 95,376 101,739
--------------------------------------------------------------------------------------------------------------------------------------------------------

The IT, interface development, Help Desk, and training and testing
development costs incurred by FMCSA over the 10-year forecast period
are summarized in Table 1. Total costs over the 10 year period are
estimated at $908,088 on an undiscounted basis. The estimated costs at
a 3 percent discount rate are $837,986, and $764,593 at a 7 percent
discount rate. The annualized cost over the 10 year period is $95,376
at a 3 percent discount rate and $101,739 at a 7 percent discount rate.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601 et seq.)
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121, 110 Stat. 857) requires Federal agencies to
consider the effects of the regulatory action on small business and
other small entities and to minimize any significant economic impact.
The term ``small entities'' comprises small businesses and not-for-
profit organizations that are independently owned and operated and are
not dominant in their fields, and governmental jurisdictions with

[[Page 86680]]

populations of less than 50,000. Accordingly, DOT policy requires an
analysis of the impact of all regulations on small entities, and
mandates that agencies strive to lessen any adverse effects on these
businesses. Section 603(b) of the RFA requires the Agency to prepare an
Initial Regulatory Flexibility Analysis (IRFA) that assesses the impact
of the proposed rule on small entities. The information that satisfies
the requirements for an IRFA is provided below.
1. A Description of the Reasons Why the Action by the Agency Is Being
Considered
The proposed rule is being issued to fulfill the requirement of
section 5403 of the FAST Act that requires the Secretary of
Transportation, in consultation with the Secretary of Veterans Affairs,
to develop a process for qualified VA physicians to be certified and
listed on the Agency's National Registry. By doing so, veteran
operators enrolled in the VA health care system will be able to obtain
their medical examinations and MECs using their VA health care
benefits. Currently, veteran operators enrolled in the VA health care
system, more likely than not, would go outside the VA health care
system because there are only 25 VA medical professionals in the nation
who are certified MEs, 10 of whom are physicians.
2. A Succinct Statement of the Objectives of, and the Legal Basis for,
the Proposed Rule
The objective of the proposed rule is to develop a process to allow
qualified VA physicians employed in the VA to be listed on the National
Registry, perform medical examinations of veteran operators, and issue
MECs to those that are qualified. Upon the proposed rule's compliance
date, qualified VA physicians will be able to complete ME certification
training and testing requirements using a web-based training system
operated by the VA to become a certified VA ME. As noted above, at
present, there are only 25 VA medical professionals across the nation
listed on the National Registry, 10 of whom are physicians. If more
qualified VA physicians are listed on the National Registry, veteran
operators enrolled in the VA health care system will have a greater
likelihood of being able to obtain their medical examinations using
their VA health care benefits.
The legal authority for this proposed rule is provided by 49 U.S.C.
31136 and 31149 and section 5403 of the FAST Act. Pursuant to 49 U.S.C.
31136(a), FMCSA is authorized to require CMV operators to obtain
periodic medical examinations performed by MEs who have received
training on DOT physical standards. FMCSA created and administers the
National Registry, in accordance with 49 U.S.C. 31149(d). In order to
ensure that MEs are qualified for listing on the National Registry, 49
U.S.C. 31149(c)(1)(D) requires them to receive training in core
curriculum requirements developed by FMCSA in consultation with the
Medical Review Board (established under 49 U.S.C. 31149(a)), to pass a
certification examination, and to demonstrate an ability to comply with
reporting requirements established by FMCSA.
Section 5403 of the FAST Act directs the Secretary of
Transportation, in consultation with the Secretary of Veterans Affairs,
to develop a process for qualified VA physicians employed in the VA to
be listed on the National Registry. In order to be qualified for ME
certification and listing on the National Registry, the FAST Act
requires that such physicians must be familiar with the physical
standards and requirements for CMV operators. Qualified VA physicians
listed on the National Registry may perform examinations of, and issue
MECs to, only veterans enrolled in the VA health care system.
3. A Description and, Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Will Apply
FMCSA believes there are no small entities affected by this
proposed rule.
4. A Description of the Proposed Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Entities That Will Be Subject to the Requirement and
Training Types of Professional Skills Necessary for Preparation of the
Report or Record and, Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Will Apply
The proposed rule requires no new recording, recordkeeping, or
other compliance requirements.
5. An Identification, to the Extent Practicable, of Relevant Federal
Rules That May Duplicate, Overlap or Conflict With the Proposed Rule
The Agency did not identify any Federal rules that duplicate,
overlap, or conflict with the rule.
6. A Description of Any Significant Alternatives to the Proposed Rule
That Minimize Any Significant Impacts on Small Entities
FMCSA has considered whether the proposed rule is expected to have
a significant economic impact on a substantial number of small
entities. FMCSA believes there are no small entities affected by this
proposed rule. Consequently, I certify that the proposed action would
not have a significant economic impact on a substantial number of small
entities.

C. Assistance for Small Entities

In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities
in understanding this proposed rule so that they can better evaluate
its effects on themselves and participate in the rulemaking initiative.
If the proposed rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance; please consult the FMCSA point of
contact, Christine A. Hydock, listed in the FOR FURTHER INFORMATION
CONTACT section of this proposed rule.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business Administration's Small Business and
Agriculture Regulatory Enforcement Ombudsman and the Regional Small
Business Regulatory Fairness Boards. The Ombudsman evaluates these
actions annually and rates each agency's responsiveness to small
business. If you wish to comment on actions by employees of FMCSA, call
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights
of small entities to regulatory enforcement fairness and an explicit
policy against retaliation for exercising these rights.

D. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $156 million (which is the
value equivalent of $100,000,000 in 1995, adjusted for inflation to
2015 levels) or more in any one year. Though this proposed rule would
not result in any such expenditure, the Agency discusses the effects of
this rule elsewhere in this preamble.

E. Paperwork Reduction Act

This proposed rule would call for no new collection of information
under the

[[Page 86681]]

Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

F. E.O. 13132 (Federalism)

A rule has implications for Federalism under Section 1(a) of
Executive Order 13132 if it has ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.''
FMCSA determined that this proposal would not have substantial
direct costs on or for States, nor would it limit the policymaking
discretion of States. Nothing in this document preempts any State law
or regulation. Therefore, this rule does not have sufficient Federalism
implications to warrant the preparation of a Federalism Impact
Statement.

G. E.O. 12988 (Civil Justice Reform)

This proposed rule meets applicable standards in sections 3(a) and
3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

H. E.O. 13045 (Protection of Children)

E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks (62 FR 19885, April 23, 1997), requires agencies
issuing ``economically significant'' rules, if the regulation also
concerns an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children, to include an
evaluation of the regulation's environmental health and safety effects
on children. The Agency determined this proposed rule is not
economically significant. Therefore, no analysis of the impacts on
children is required. In any event, the Agency does not anticipate that
this regulatory action could in any respect present an environmental or
safety risk that could disproportionately affect children.

I. E.O. 12630 (Taking of Private Property)

FMCSA reviewed this proposed rule in accordance with E.O. 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and has determined it will not effect a taking of
private property or otherwise have taking implications.

J. Privacy

Section 522 of title I of division H of the Consolidated
Appropriations Act, 2005, (Pub. L. 108-447, 118 Stat. 2809, 3268, 5
U.S.C. 552a note), requires the Agency to conduct a privacy impact
assessment (PIA) of a regulation that will affect the privacy of
individuals. This rule would not require the collection of any new
personally identifiable information (PII) by the National Registry of
Certified Medical Examiners system, but will establish a new process of
collection for a specific group of individuals. In accordance with this
Act, a privacy impact analysis is warranted to address the new process
for collection of personally identifiable information contemplated in
the proposed rulemaking. The Agency submitted a Privacy Threshold
Assessment analyzing the proposed process for collection of personal
information to the Department of Transportation, Office of the
Secretary's Privacy Office for adjudication. The final adjudication
from the DOT Privacy Officer will be incorporated into the Final Rule.
The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
and any non-Federal agency which receives records contained in a system
of records from a Federal agency for use in a matching program. The E-
Government Act of 2002, Public Law 107-347, 208, 116 Stat. 2899, 2921
(Dec. 17, 2002), requires Federal agencies to conduct a privacy impact
assessment for new or substantially changed technology that collects,
maintains, or disseminates information in an identifiable form.
Pending the adjudication from the DOT Privacy Officer, the FMCSA
Privacy Officer has evaluated the risks and effects that this
rulemaking might have on collecting, storing, and sharing Personally
Identifying Information and has examined protections and alternative
information handling processes in developing the proposal in order to
mitigate potential privacy risks. The privacy risks and effects
associated with the doctor's registration records resulting from this
rule are not unique and have previously been addressed by the doctor
registration requirements in the National Registry of Certified Medical
Examiners (National Registry) and the Medical Examiner's Certification
Integration PIA published on April 27, 2015 and the DOT/FMCSA 009--
National Registry of Certified Medical Examiners (National Registry)
System of Records Notice (77 FR 24247) published in the Federal
Register on April 23, 2012. The PIA will be reviewed and revised as
appropriate to reflect the Final Rule and will be published not later
than the date on which the Department initiates any of the activities
contemplated in the Final Rule determined to have an impact on
individuals' privacy and not later than the date on which the system
supporting implementation of the Final Rule is updated.
Per the Privacy Act the Department is required to publish in the
Federal Register for not less than 30 days a system of records notice
(SORN) before it is authorized to collect or use PII retrieved by
unique identifier. Following best practice, the SORN will be reviewed
and revised as appropriate to reflect the Final Rule and would be
published concurrently with the Final Rule publication; however an
additional SORN for this rulemaking is not required by DOT policy at
this time.
The supporting National Registry PIA, available for review in the
docket, gives a full and complete explanation of FMCSA practices for
protecting PII in general and specifically in relation to the system
addressed in the proposed rule.

K. E.O. 12372 (Intergovernmental Review)

The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
program.

L. E.O. 13211 (Energy Supply, Distribution, or Use)

FMCSA has analyzed this proposed rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agency has determined that it is not a
``significant energy action'' under that order because it is not a
``significant regulatory action'' likely to have a significant adverse
effect on the supply, distribution, or use of energy. Therefore, it
does not require a Statement of Energy Effects under E.O. 13211.

M. E.O. 13175 (Indian Tribal Governments)

This rule does not have tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it does not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes.

N. National Technology Transfer and Advancement Act (Technical
Standards)

The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through OMB, with

[[Page 86682]]

an explanation of why using these standards would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
(e.g., specifications of materials, performance, design, or operation;
test methods; sampling procedures; and related management systems
practices) are standards that are developed or adopted by voluntary
consensus standards bodies. This rule does not use technical standards.
Therefore, FMCSA did not consider the use of voluntary consensus
standards.

O. Environment (NEPA, CAA, Environmental Justice)

FMCSA analyzed this NPRM for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
determined this action is categorically excluded from further analysis
and documentation in an environmental assessment or environmental
impact statement under FMCSA Order 5610.1 (69 FR 9680, March 1, 2004),
Appendix 2, paragraphs 6.d. The Categorical Exclusion (CE) in paragraph
6.d covers regulations concerning the training, qualifying, licensing,
certifying, and managing of personnel. The proposed requirements in
this rule are covered by this CE and the proposed action does not have
any effect on the quality of the environment. The CE determination is
available for inspection or copying in the Federal eRulemaking Portal:
http://www.regulations.gov.
FMCSA 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 does not affect direct or indirect emissions of
criteria pollutants.
Under E.O. 12898, each Federal agency must identify and address, as
appropriate, ``disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on
minority populations and low-income populations'' in the United States,
its possessions, and territories. FMCSA evaluated the environmental
justice effects of this proposed rule in accordance with the E.O., and
has determined that no environmental justice issue is associated with
this proposed rule, nor is there any collective environmental impact
that would result from its promulgation.

List of Subjects

49 CFR 390

Highway safety, Intermodal transportation, Motor carriers, Motor
vehicle safety, Reporting and recordkeeping requirements.

49 CFR 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 49 CFR
chapter 3, part 390 and 391 to read as follows:

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
1. The authority citation for part 390 is revised to read as follows:

Authority: 49 U.S.C. 504, 508, 31132, 31133, 31134, 31136,
31137, 31144, 31149, 31151, 31502; sec. 114, Pub. L. 103-311, 108
Stat. 1673, 1677-1678; sec. 212, 217, Pub. L. 106-159, 113 Stat.
1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as transferred by sec.
4114 and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144,
1726, 1743-1744); sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745;
sec. 32101(d) and 32934, Pub. L. 112-141, 126 Stat. 405, 778, 830;
sec. 2, Pub. L. 113-125, 128 Stat. 1388; sec. 5403, 5518, 5524, Pub.
L. 114-94, 129 Stat. 1312, 1548, 1558, 1560; and 49 CFR 1.81, 1.81a
and 1.87.

0
2. In Sec. 390.5, add the terms ``Certified VA medical examiner,''
``Qualified VA physician'' and ``Veteran operator'' in alphabetical
order to read as follows:

Sec. 390.5 Definitions.

* * * * *
Certified VA medical examiner means a qualified VA physician who
has fulfilled the requirements and is listed on the National Registry
of Certified Medical Examiners.
* * * * *
Qualified VA physician means a doctor of medicine or a doctor of
osteopathy who is employed in the Department of Veterans Affairs; is
familiar with the standards for, and physical requirements of, an
operator certified pursuant to 49 U.S.C. 31149; and has never, with
respect to such section, been found to have acted fraudulently,
including by fraudulently awarding a medical certificate.
* * * * *
Veteran operator means an operator of a commercial motor vehicle
who is a veteran enrolled in the health care system established under
section of 38 U.S.C. 1705(a).
0
3. Revise Sec. 390.103 to read as follows:

Sec. 390.103 Eligibility requirements for medical examiner
certification.

(a) To receive medical examiner certification from FMCSA a person
must either:
(1) 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, and
(i) Be licensed, certified, or registered in accordance with
applicable State laws and regulations to perform physical examinations;
(ii) Before taking the training provided below, register on the
National Registry System and receive a unique identifier.
(iii) Complete a training program that meets the requirements of
Sec. 390.105(a) and (b); and
(iv) Pass the medical examiner certification test provided by FMCSA
and 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 information no more than three years after
completion of the training program required by paragraph (a)(1)(iii) of
this section; or
(2) Be a doctor of medicine or a doctor of osteopathy employed in
the Department of Veterans Affairs, and
(i) Be licensed, certified, or registered in a State to perform
physical examinations,
(ii) Before taking the training provided below, register on the
National Registry system and receive a unique identifier.
(iii) Be familiar with FMCSA's standards for, and physical
requirements of, a commercial motor vehicle (CMV) operator requiring
medical certification, by completing the training program in Sec.
390.105(c);
(iv) Pass the medical examiner certification test provided by
FMCSA, administered in accordance with Sec. 390.107(e) and has had his
or her results electronically forwarded to FMCSA; and
(v) Have never been found to have acted fraudulently with respect
to any certification of a CMV operator, including by fraudulently
awarding a medical certificate.
(b) If a person has medical examiner certification from FMCSA, then
to renew such certification the medical examiner must remain qualified
under paragraph (a)(1) or (a)(2) of this section and complete
additional testing and training as required by Sec. 390.111(a)(5).

[[Page 86683]]

0
4. In Sec. 390.105, add paragraph (c) to read as follows:

Sec. 390.105 Medical examiner training programs.

* * * * *
(c) Instead of complying with paragraph (a) and (b) of this
section, a qualified VA physician must complete training developed and
provided by FMCSA and delivered through a Web-based training system
operated by the Department of Veterans Affairs.
0
5. In 390.107, add paragraph (e) to read as follows:

Sec. 390.107 Medical examiner certification testing.

* * * * *
(e) Instead of complying with paragraphs (a)-(d) of this section,
to receive medical examiner certification from FMCSA, a qualified VA
physician must pass the medical examiner certification test developed
and provided by FMCSA and administered through a Web-based training
system operated by the Department of Veterans Affairs.
0
6. In Sec. 390.111, revise paragraphs (a)(2), (3), (4), (a)(5)
introductory text, (a)(5)(ii)(B), and paragraph (b).

Sec. 390.111 Requirements for continued listing on the National
Registry of Certified Medical Examiners.

(a) * * *
(1) * * *
(2) Registration information. (i) Report to FMCSA any changes in
the registration information submitted under Sec. 390.103(a)(1)(ii)
within 30 days of the change.
(ii) A certified VA medical examiner who is no longer employed in
the VA, but would like to remain listed on the National Registry, must
either meet the requirements of paragraph (i) or submit this change in
registration information prior to conducting any physical examination
of a CMV driver or issuing any medical examiner's certificates.
(3) Licensure. (i) 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.
(ii) Instead of complying with paragraph (3)(i) of ths section, a
certified VA medical examiner must continue to be licensed, certified,
or registered, and authorized to perform physical examinations, in
accordance with the laws and regulations of a State. If a certified VA
medical examiner is no longer employed in the Department of Veterans
Affairs, such physician must meet the requirements of paragraph (3)(i)
of this section.
(4) Documentation. (i) Maintain documentation of State licensure,
registration, or certification to perform physical examinations for
each State in which the examiner performs examinations, and maintain
documentation of, and completion of, all training required by this
section and Sec. Sec. 390.105 (a) and (b). The medical examiner must
make this documentation available to an authorized representative of
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 the
request for regular audits of eligibility.
(ii) Instead of complying with paragraph (4)(i) of this section, a
certified VA medical examiner must maintain documentation of licensure,
registration, or certification in a State to perform physical
examinations and maintain documentation of and completion of all
training required by this section and Sec. 390.105(c). The certified
VA medical examiner must make this documentation available to an
authorized representative of FMCSA or an authorized representative of
Federal, State, or local government. The certified VA medical examiner
must provide this documentation within 48 hours of the request for
investigations and within 10 days of the request for regular audits of
eligibility.
(5) Maintain medical examiner certification by completing training
and testing according to the following schedule:
(ii) * * *
(A) * * *
(B) Pass the test required by either Sec. 390.103(a)(1)(iv) or
(a)(2)(iii).
(b) FMCSA will issue a new medical examiner certification
credential valid for 10 years to a medical examiner who complies with
paragraphs (a)(1) through (5) of this section and who successfully
completes the training and testing as required by paragraphs (a)(5)(i)
or (ii) of this section.
0
7. In Sec. 390.115, revise paragraphs (b), (d)(2)(ii), (d)(2)(v),
(d)(2)(vi), (f)(2) and (f)(4).

Sec. 390.115 Procedures for removal from the National Registry of
Certified Medical Examiners.

* * * * *
(b) Notice of proposed removal. Except as provided 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 of Certified Medical
Examiners.
(d) * * *
(2) * * *
(ii) Report to FMCSA any changes in the registration information
submitted under Sec. 390.103(a)(1)(ii) within 30 days of the
reinstatement.
* * * * *
(v) Instead of complying with paragraph (2)(iv) of this section, a
certified VA medical examiner must maintain documentation of licensure,
registration, or certification in a State to perform physical
examinations and maintain documentation of and completion of all
training required by this section and Sec. Sec. 390.105(c) and
390.111(a)(iv) of this part. The certified VA medical examiner must
make this documentation available to an authorized representative of
FMCSA or an authorized representative of Federal, State, or local
government. The certified VA medical examiner must provide this
documentation within 48 hours of the request for investigations and
within 10 days of the request for regular audits of eligibility.
(vi) Complete periodic training as required by the Director, Office
of Carrier, Driver and Vehicle Safety Standards.
* * * * *
(f) * * *
(1) * * *
(2) Report to FMCSA any changes in the registration information
submitted under Sec. 390.103(a)(1)(ii).
(3) * * *
(4) Documentation. (i) Maintain documentation of State licensure,
registration, or certification to perform physical examinations for
each State in which the person performs examinations and maintains
documentation of completion of all training required by Sec. Sec.
390.105(a) and (b) and 390.111(a)(4)(i). The medical examiner must also
make this documentation available to an authorized representative of
FMCSA or an authorized representative of Federal, State, or local
government. The person must provide this documentation within 48 hours
of the request for investigations and within 10 days of the request for
regular audits of eligibility.
(ii) Instead of complying with paragraph (4)(i) of this section, a
certified VA medical examiner must maintain documentation of licensure,

[[Page 86684]]

registration, or certification in a State to perform physical
examinations and maintain documentation of and completion of all
training required by this section and Sec. 390.105(c) and
390.111(a)(iv). The certified VA medical examiner must make this
documentation available to an authorized representative of FMCSA or an
authorized representative of Federal, State, or local government. The
certified VA medical examiner must provide this documentation within 48
hours of the request for investigations and within 10 days of the
request for regular audits of eligibility.
* * * * *

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

0
8. The authority citation for part 391 is revised to read as follows:

Authority: 49 U.S.C. 504, 508, 31133, 31136, 31149, and 31502;
sec. 4007(b) of Pub. L. 102-240, 105 Stat. 1914, 2152; sec. 114 of
Pub. L. 103-311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106-159,
113 Stat. 1748, 1767; sec. 32934 of Pub. L. 112-141, 126 Stat. 405,
830; sec. 5403 and 5524 of Pub. L. 114-94, 129 Stat. 1312, 1548,
1560; and 49 CFR 1.87.

0
9. In 391.43, revise paragraph (b) to read as follows:

Sec. 391.43 Medical examination; certificate of physical
examination.

* * * * *
(b) Exceptions. (1) A licensed optometrist may perform so much of
the medical examination as pertains to visual acuity, field of vision,
and the ability to recognize colors as specified in paragraph (10) of
Sec. 391.41(b).
(2) A certified VA medical examiner must only perform medical
examinations of veteran operators.
* * * * *

Issued under authority delegated in 49 CFR 1.87 on: November 23,
2016.
T.F. Scott Darling, III,
Administrator.
[FR Doc. 2016-28746 Filed 11-30-16; 8:45 am]
BILLING CODE 4910-EX-P