agency to review each exemption request is time the applicant with diabetes spends in limbo waiting to learn his or her fate, and often losing his or her job. The Association discussed the economic hardship that grows from the long wait in its 2005 comments concerning the first four individuals identified to receive diabetes exemptions.8 For the majority of applicants with diabetes, FMCSA’s decision determines whether they can return to a driving career, as well as whether they will be able to retain the very health insurance coverage that helps them manage their diabetes. FMCSA has acknowledged this problem. In its March 16, 2006 press release announcing this advanced notice of proposed rulemaking, FMCSA stated that, “this can be a lengthy process because prior to granting an exemption the Agency is required to examine each applicant’s medical circumstances and publish their names in the Federal Register for public comments.”9
These delays are occurring despite the fact that FMSCA is not even following all of the statutory provisions for notice in the current exemption program. Section 31315 of title 49 of the United States Code on Transportation requires that FMCSA publish a notice of each exemption request in the Federal Register: “Upon receipt of an exemption request, the Secretary shall publish in the Federal Register a notice explaining the request that has been filed and shall give the public an opportunity to inspect the safety analysis and any other relevant information known to the Secretary and to comment on the request.”10 The agency has failed to meet this statutory requirement. Instead, FMCSA has published a notice only for those individuals who have been granted preliminary approval.11 FMCSA states that because they “established eligibility criteria for use in determining whether the granting of a diabetes exemption would achieve the requisite level of safety, the Agency only publishes for public comment, the names of exemption applications that satisfy the eligibility requirements, based upon the information provided by the applicant . . . the Agency
application is complete, Federal Motor Carrier Safety Administration (FMCSA) will determine if the eligibility criteria have been met.” “Exemption Application, Diabetes Standard” available at: http://www.fmcsa.dot.gov/documents/safetyprograms/Diabetes/diabetes-exemption-package.pdf (last visited
April 28, 2006).
8 See Comments of the American Diabetes Association, Docket No. FMCSA-2005-20721 (June 6, 2005) (stating that “failure to move expeditiously on applicants, the continued existence of the three-year rule, and
the other unnecessary roadblocks discussed in this comment will
across our country. meaningless to most
As a people
result, unless changes are made, with insulin-treated diabetes.”).
continue to have a real impact on the Diabetes Exemption Program
families will be
9 Press Release, Federal Motor Carrier Safety Administration, Advance Notice of Proposed Rulemaking (ANPRM) Concerning Truck and Bus Drivers with Insulin-Treated Diabetes Mellitus (Mar. 16, 2006) (on file with author).
49 U.S.C. § 31315(b)(4)(A).
11 See, e.g., Qualification of Drivers; Exemption Applications; Diabetes, 70 Fed. Reg. 60875 (Oct. 19, 2005), Qualification of Drivers; Exemption Applications; Diabetes, 70 Fed. Reg. 75236 (Dec. 19, 2005), and Qualification of Drivers; Exemption Application from Thomas Deke; Diabetes, 71 Fed. Reg. 17558 (Apr. 6, 2006). The Association previously identified the problem with FMCSA’s notice and comment efforts regarding the requirement to publish a notice in the Federal Register for each exemption requested, and providing the public an opportunity to inspect the relevant information and comment on the request. See Comments of the American Diabetes Association, Docket No. FMCSA-2005-20721 (June 6, 2005) (citing to 68 Fed. Reg. 52241 and the authority to issue exemptions).