Qualifications of Drivers: Medical Advisory Criteria

<RULE> DEPARTMENT OF TRANSPORTATION <SUBAGY>Federal Motor Carrier Safety Administration</SUBAGY> <CFR>49 CFR Part 391</CFR> <DEPDOC>[Docket No. FMCSA-2022-0111]</DEPDOC> <SUBJECT>Qualifications of Drivers: Medical Advisory Criteria</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> FMCSA updates the Medical Advisory Criteria published as an appendix in the Code of Federal Regulations (CFR). The appendix provides guidance for medical examiners listed on FMCSA's National Registry of Certified Medical Examiners (National Registry) on the applicability and interpretation of the physical qualification standards for operators of commercial motor vehicles. The advisory criteria in the appendix are also intended to provide recommendations and information to assist medical examiners in applying the standards, basic information related to testing, and matters to consider when making a qualification determination. The updated Medical Advisory Criteria replace all previous versions of the criteria. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective on January 19, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Ms. Christine A. Hydock, Chief, Medical Programs Division, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590, (202) 366-4001, <E T="03">FMCSAmedical@dot.gov.</E> If you have questions on viewing material in the docket, call Dockets Operations at (202) 366-9826. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Availability of Documents</HD> To view comments or any documents mentioned as being available in the docket, go to <E T="03">https://www.regulations.gov/docket/FMCSA-2022-0111/document</E> and choose the document to review. To view comments, click “Browse Comments.” If you do not have access to the internet, you may view the docket online by visiting Dockets Operations on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations. <HD SOURCE="HD1">II. Legal Basis</HD> FMCSA has statutory authority under 49 U.S.C. 31136(a)(3) and 31149(c)(1)(A)(i)—delegated to the Agency by 49 CFR 1.87(f)—to establish regulations to ensure the physical condition of commercial motor vehicle operators is adequate to enable them to operate the vehicles safely. The guidance in the Medical Advisory Criteria is related to the physical qualification regulations required by those sections. The notice and comment rulemaking procedures of the Administrative Procedure Act (APA) do not apply to interpretative rules and general statements of policy (commonly called “guidance”) (5 U.S.C. 553(b)(A)). The Medical Advisory Criteria are interpretative rules that provide guidance, but do not amend any Agency regulation or establish any requirements for medical examiners or drivers not found in existing regulations. Accordingly, FMCSA was not required under the APA to solicit public comment on the criteria. Nevertheless, to ensure that the Medical Advisory Criteria provide clear, useful, and relevant information for stakeholders and as encouraged by DOT policy, <SU>1</SU> <FTREF/> FMCSA opted to make a draft of the criteria available for public review and comment (87 FR 50282 (Aug. 16, 2022)). Although FMCSA voluntarily provided an opportunity for public comment on the Medical Advisory Criteria, its decision to do so does not make applicable any of the other procedural requirements in the APA or most of the other statutes or executive orders that would apply if the opportunity for prior notice and public comment were required. <FTNT> <SU>1</SU>  Section 14(f) of DOT 2100.6A (Rulemaking and Guidance Procedures) states that it is DOT policy to encourage providing an opportunity for public comment on guidance documents, as public input can be very helpful in formulating and improving the guidance that DOT offers. </FTNT> Further, the APA does not require interpretive rules such as this to be published in the <E T="04">Federal Register</E> with an effective date that is not less than 30 days after publication (5 U.S.C. 553(d)(2)). Therefore, this rule is effective on the date of publication in the <E T="04">Federal Register</E> to coincide with the publication of the revised Medical Examiner's Handbook (MEH). <HD SOURCE="HD1">III. Background</HD> In 2000, FMCSA adopted a revised medical examination report that also contained the Agency's guidelines to help medical examiners assess an individual's physical qualifications. These guidelines, in the form of advisory criteria, were strictly advisory and were established after consultation with physicians, States, and industry representatives (65 FR 59363, 59364 (Oct. 5, 2000)). Subsequently, when FMCSA revised the report form again, the medical advisory criteria were removed from the report form and published as Appendix A to 49 CFR part 391 (80 FR 22790 (Apr. 23, 2015)). On August 16, 2022, FMCSA made available for public comment a revised and updated draft MEH, which included updates to the Medical Advisory Criteria (87 FR 50282). The goal of the updated Medical Advisory Criteria was to provide guidance for medical examiners to consider when making physical qualification determinations in conjunction with established best medical practices. Information that was outdated, obsolete, or no longer relevant was removed from the Medical Advisory Criteria. The Agency stated that the revised Medical Advisory Criteria would be included in the MEH and would also be published in Appendix A to 49 CFR part 391. The final version of the criteria would be identical in both publications. FMCSA notes that, as a procedural matter, a final rule is required by the Office of the Federal Register to change any text included in the CFR. This is so even if the CFR text changed is guidance in an interpretive rule, as is the case here. <HD SOURCE="HD1">IV. New Regulatory Guidance</HD> After consideration of the public comments and further internal review, FMCSA has published a revised MEH that includes revisions to the Medical Advisory Criteria. A <E T="04">Federal Register</E> notice about this publication of the MEH and the treatment of some of the public comments is being issued concurrently with this notice. The revised criteria included in the MEH are identical to the criteria published by this notice in Appendix A to 49 CFR part 391; although, the order of the criteria differs. The criteria in the MEH reflects the order in which a medical examiner typically conducts the physical qualification examination, while Appendix A organizes the criteria in the same order that the physical qualification standards appear in 49 CFR 391.41(b). Consistent with previous practice, the Medical Advisory Criteria are advisory and are therefore considered guidance because they provide interpretations and recommendations for the physical qualification standards contained in the Federal Motor Carrier Safety Regulations. The updated Medical Advisory Criteria replace all previous versions of the criteria. Previous versions of the Medical Advisory Criteria should not be relied upon. <HD SOURCE="HD1">V. Publication of the Regulatory Guidance</HD> Each guidance document issued by FMCSA must be published on a publicly accessible DOT internet website on the date of issuance (49 U.S.C. 113 note). <SU>2</SU> <FTREF/> Accordingly, in addition to being available in this docket and the MEH, the Medical Advisory Criteria will be available in FMCSA's Guidance Portal ( <E T="03">https://www.fmcsa.dot.gov/guidance</E> ). The criteria also will be available on FMCSA's website at <E T="03">https://www.fmcsa.dot.gov/regulations/medical/medical-regulations-and-guidance-resource-links</E> and on the National Registry website at <E T="03">https://nationalregistry.fmcsa.dot.gov/resource-center.</E> <FTNT> <SU>2</SU>  See section 5203(a)(2)(A) and (a)(3) of the Fixing America's Surface Transportation Act, Public Law 114-94, 129 Stat. 1312, 1535 (Dec. 4, 2015). </FTNT> FMCSA expects to review the guidance no later than 5 years after it is published and will consider at that time whether the guidance should be withdrawn, reissued, or incorporated into FMCSA's regulations. <HD SOURCE="HD1">VI. Regulatory Analysis</HD> <HD SOURCE="HD2">A. Regulatory Flexibility Act (Small Entities)</HD> Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612), FMCSA is not required to complete a regulatory flexibility analysis because, as discussed earlier in the Legal Basis section, this action is not subject to notice and public comment under section 553(b) of the APA. <HD SOURCE="HD2">B. Assistance for Small Entities</HD> In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857, Mar. 29, 1996), FMCSA wants to assist small entities in understanding this final rule so they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the final rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance; please consult the person listed under the <E T="02">FOR FURTHER INFORMATION CONTACT</E> section of this final rule. <HD SOURCE="HD2">C. Unfunded Mandates Reform Act of 1995</HD> 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 ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 33k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━