[Federal Register: August 22, 2002 (Volume 67, Number 163)]
[Notices]
[Page 54525-54527]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22au02-125]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[FMCSA Docket No. FMCSA-2002-12432]
Application for Exemptions From Driver Physical Qualification
Standards From Jerry Parker
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT
ACTION: Notice of application for exemptions; request for comments.
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SUMMARY: The FMCSA requests public comment on a request for an
exemption application from the Federal standards for vision and for the
loss or impairment
[[Page 54526]]
of limbs by Mr. Jerry Parker. Mr. Parker does not meet the vision
requirements because of severe vision loss in his right eye. He does
not meet the physical qualification requirements for the loss or
impairment of limbs because he is missing his left arm and is unable to
demonstrate power grasp prehension and precision prehension with each
upper limb separately. In order for Mr. Parker to operate a commercial
motor vehicle (CMV) in interstate commerce, he must be granted an
exemption from both requirements. Mr. Parker believes his driving
record indicates that a level of safety can be achieved that is
equivalent to, or greater than, the level of safety that would be
obtained by complying with the standards for vision and for loss or
impairment of limbs set forth in the Federal Motor Carrier Safety
Regulations.
DATES: We must receive your comments on or before September 23, 2002.
ADDRESSES: You can mail or hand deliver comments to the U.S. Department
of Transportation, Dockets Management Facility, Room PL-401, 400
Seventh Street, SW., Washington DC 20590-0001. You can also submit
comments as well as see the submission of other commenters at
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dmses.dot.gov.
Please include the docket number that appears in the
heading of this document. You can examine and copy this document and
all comments received at the same Internet address or at the Dockets
Management Facility from 9 a.m. to 5 p.m., e.t., Monday through Friday,
except Federal holidays. If you want to know that we received your
comments, please include a self-addressed, stamped postcard or print a
copy of the acknowledgement page that appears after you submit comments
electronically.
FOR FURTHER INFORMATION CONTACT: For information about the exemptions
in this notice, you may contact Ms. Kaye Kirby, Office of Bus and Truck
Standards and Operations, (202) 366-3109; Federal Motor Carrier Safety
Administration, Department of Transportation, 400 Seventh Street, SW.,
Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m.,
e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
Sections 31315 and 31136 of title 49 of the United States Code
(U.S.C.) provide the FMCSA with authority to grant exemptions from the
Federal Motor Carrier Safety Regulations (FMCSRs). An exemption
provides time-limited regulatory relief from one or more FMCSRs given
to a person or class of persons subject to the regulations, or who
intend to engage in an activity that would make them subject to the
regulations. An exemption provides the person or class of persons with
relief from the regulations for up to two years, and may be renewed.
Sections 31315 and 31136(e) of 49 U.S.C. require the agency to consider
whether the terms and conditions for the exemption would achieve a
level of safety that is equivalent to, or greater than, the level of
safety that would be obtained by complying with the regulations when
evaluating applications for exemptions.
In addition, the agency must publish a notice in the Federal
Register for each exemption requested, explaining the request that has
been filed; providing the public with an opportunity to inspect the
safety analysis and any other relevant information known to the agency;
and requesting public comment on the exemption. Before granting a
request for an exemption, the agency must publish a notice in the
Federal Register identifying the person or class of persons who will
receive the exemption, the provisions from which the person will be
exempt, the effective period and all terms and conditions of the
exemption. The terms and conditions established by FMCSA must ensure
that the exemption will likely achieve a level of safety that is
equivalent to, or greater than, the level that would be achieved by
complying with the regulation.
On December 8, 1998, FMCSA published an interim final rule
implementing section 4007 of the Transportation Equity Act for the 21st
Century (TEA-21)(codified at 49 U.S.C. 31315) (See 63 FR 67600). The
regulations at 49 CFR part 381 establish the procedures to be followed
to request waivers and to apply for exemptions from the FMCSRs, and the
provisions used to process them.
Mr. Parker's Request for Regulatory Relief
Mr. Parker applied for a vision waiver from the FHWA in 1996, under
the agency's authority to grant waivers to regulations promulgated
under the Motor Carrier Safety Act of 1984. That authority has since
been superseded by 49 U.S.C 31315. The criteria for obtaining a vision
waiver was established under the agency's former Vision Waiver Program
and included a provision that applicants for vision waivers meet all
other physical qualification requirements under 49 CFR 391.41. When the
agency discovered that Mr. Parker's left arm had been amputated at the
shoulder, his application for a vision waiver was denied. The agency
indicated that it lacked sufficient evidence to determine if someone
with both a vision impairment and limb impairment could safely operate
a CMV. Subsequently, the agency has learned that Mr. Parker may have
some degree of impairment in his right arm
Mr. Parker filed a Petition for Review with the United States Court
of Appeals for the Sixth Circuit arguing that denial violated the
Rehabilitation Act because the FMCSA did not perform an individualized
inquiry into the merits of Mr. Parker's petition. On March 17, 2000,
the Court ruled that the agency's administrative decision was arbitrary
and capricious, and a violation of the Rehabilitation Act (Jerry W.
Parker v. United States Department of Transportation, 207 F. 3d 359
(6th Cir. 2000)). The Court was concerned that the decision not to
assess Mr. Parker's actual driving capabilities was not consistent with
the agency's prior determination under the vision waiver program that
the best predictor of future performance by a driver was the driver's
past record of accidents and traffic violations. The court concluded
that agency failure to assess Mr. Parker's actual driving capability
created a per se rule against granting vision waivers to individuals
with multiple disabilities. The Sixth Circuit remanded the case to
FMCSA to create a functional capacity test that relies upon our finding
that an individual's driving record is indicative of future
performance.
In response to the Court's ruling, FMCSA is currently considering
requests for exceptions to the physical qualifications standards from
drivers with multiple disabilities, to be applications for exemptions.
Each disability that would preclude the driver from complying with the
physical qualifications standards should be considered separately with
regard to the agency's process for determining whether to grant or deny
the petition upon review of public comments. The agency has made a
preliminary decision to use the existing procedures under 49 CFR part
381.
Consistent with the agency's preliminary decision concerning
drivers with multiple disabilities, the agency is considering Mr.
Parker's request as: (1) An application for an exemption from the
vision standard under section 391.41(b)(10); and (2) an application for
an exemption from the standard for the loss of limbs at section
391.41(b)(1).
Section 391.41(b)(10) requires a person to have distant vision
acuity of a least 20/40 (Snellen) in each eye with
[[Page 54527]]
or without corrective lenses; and distant binocular acuity of at least
20/40 (Snellen) in both eyes with or without corrective lenses; and
field of vision of at least 70 degrees in the horizontal meridian in
each eye; and the ability to recognize the colors of traffic signals
and devices showing standard red, green, and amber. Section
391.41(b)(1) requires that a person have no loss of foot, leg, hand, or
arm, or alternatively, be granted a skill performance evaluation (SPE)
certificate [previously called a ``waiver''] pursuant to section
391.49. The alternative physical qualification standards for the loss
or impairment of limbs, at 49 CFR 391.49(d)(3)(i)(B), include a
requirement that applicants for SPE certificates include with their
application a medical evaluation summary that, ``* * * the applicant is
capable of demonstrating precision prehension (e.g. manipulating knobs
and switches) and power grasp prehension (e.g. holding and maneuvering
the steering wheel) with each upper limb separately.''
Mr. Parker does not meet the vision requirements because of a
congenital eye condition known as Coats disease in his right eye. His
ability to see with his right eye is below that which could be measured
on the standard Snellen chart. However, he has corrected vision of 20/
20 in his left eye. Mr. Parker does not meet the physical qualification
requirements for the loss of limbs and he is unable to demonstrate
precision prehension (e.g., manipulating knobs and switches) and power
grasp prehension (e.g., holding and maneuvering the steering wheel)
with each upper limb separately. Under current regulations at 49 CFR
391.41/391.49, Mr. Parker would need to use a prosthetic device in
order to demonstrate precision and power grasp prehension. He does not
use a prosthetic device to assist in operating CMVs. Mr. Parker's left
arm was amputated above the elbow. His right arm has severe scarring
and he has had multiple surgeries on this arm as a result of the
injuries sustained in the accident that necessitated the amputation of
the left arm.
Mr. Parker stated that he has driven safely over 1.2 million miles
in a CMV since 1985. He has no accidents and no traffic violations on
his driving record.
Request for Comments
In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA
requests public comment from all interested parties on Mr. Parker's
application for an exemption from the Federal standards for vision and
for the loss of limbs. Interested persons should consider each
exemption separately, to the greatest extent practicable. FMCSA also
requests comments on our plan to assess individual physical impairments
separately (only vision and limb). We have not yet made a final
decision on potential diabetic exemptions and today's notice pronounces
no proposal on how to handle those situations. The agency may grant or
deny either or both requests based on the comments received, and any
other relevant information that is available to the agency.
Issued on: August 19, 2002.
Pamela M. Pelcovits,
Director, Office of Policy Plans and Regulation.
[FR Doc. 02-21476 Filed 8-21-02; 8:45 am]
BILLING CODE 4910-EX-P
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