[Federal Register: May 18, 2006 (Volume 71, Number 96)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[FMCSA Docket No. FMCSA-2006-24016]
Qualification of Drivers; Exemption Application From Thomas Deke;
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition.
SUMMARY: FMCSA announces its decision to exempt Mr. Thomas Deke from
its rule prohibiting persons with insulin-treated diabetes mellitus
(ITDM) from operating commercial motor vehicles (CMVs) in interstate
commerce. The exemption will enable Mr. Deke to operate CMVs in
DATES: The exemption is effective May 18, 2006. The exemption expires
on May 18, 2008.
FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Chief, Physical
Qualifications Division, (202) 366-4001, firstname.lastname@example.org, FMCSA,
Department of Transportation, 400 Seventh Street, SW., Room 8301,
Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m.,
Monday through Friday, except Federal holidays.
You may see all the comments online through the Document Management
System (DMS) at: http://dmses.dot.gov .
Docket: For access to the docket to read background documents or
comments received, go to http://dms.dot.gov and/or Room PL-401 on the
plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
Privacy Act: Anyone may search the electronic form of all comments
received into any of DOT's dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, or other
entity). You may review DOT's complete Privacy Act Statement in the
Federal Register (65 FR 19477, April 11, 2000). This statement is also
available at http://dms.dot.gov.
Current applicant has had ITDM since 2002. This applicant reports
no hypoglycemic reaction that resulted in loss of consciousness or
seizure, that required the assistance of another person, or resulted in
impaired cognitive function without warning symptoms in the past 5
years (with one year of stability following any such episode). An
endocrinologist has verified that the driver has demonstrated
willingness to properly monitor and manage their diabetes, received
education related to diabetes management, and is on a stable insulin
regimen. This driver reports no other disqualifying conditions,
including diabetes-related complications. He meets the vision standard
at 49 CFR 391.41(b)(10).
The qualifications and medical condition of this applicant were
stated and discussed in detail in the April 06, 2006, Federal Register
Notice (70 FR 75236). Because there were no docket comments on the
specific merits or qualifications of any applicant, we have not
repeated the individual's profile here. The Agency would like to
publish a correction to Mr. Deke's Profile. Mr. Deke was published as
having a Class A Commercial Driver's License (CDL) from the State of
Montana when he actually holds a Class A CDL from the State of
Basis for Exemption Determination
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption
from the diabetes standard in 49 CFR 391.41(b)(3) if the exemption is
likely to achieve an equivalent or greater level of safety than would
be achieved without the exemption. The exemption allows the applicant
to operate CMVs in interstate commerce.
To evaluate the effect of this exemption on safety, FMCSA
considered medical reports about the applicant's ITDM and vision, and
reviewed the treating endocrinologist's medical opinion related to the
ability of the driver to safely operate a CMV while using insulin.
Consequently, FMCSA finds that exempting this applicant from the
diabetes standard in 49 CFR 391.41(b)(3) [[Page 28914]]
is likely to achieve a level of safety equal to that existing without
the exemption. The Agency is granting the exemption for the 2-year
period allowed by 49 U.S.C. 31136(e) and 31315 to Thomas G. Deke.
Conditions and Requirements
The terms and conditions of the exemption will be provided to the
applicant in the exemption document.
Discussion of Comments
FMCSA received four comments in this proceeding. The comments are
considered and discussed below.
Three letters of recommendation were received in favor of granting
the Federal diabetes exemption to Mr. Thomas Deke. They suggested that
this applicant be granted the Federal diabetes exemption due to his
high level of professionalism and safety while driving.
One individual commented that the application process is burdensome
and discriminatory. She also stated that she feels that many diabetic
drivers are not forthcoming with medical information during their
physical examinations because they fear they will lose their commercial
FMCSA has initiated numerous improvements in the application
process for exemption program applicants, including developing Web-
based solutions to streamline the application process and redrafting
the application to incorporate SAFETEA-LU changes and to make it user
friendly. FMCSA notes that SAFETEA-LU provides specific changes to the
driving requirement for interstate operators with ITDM. These changes
eliminate the three-year CMV driving requirement and significantly
reduce the required time for management of the diabetic condition with
FMCSA's exemption process supports drivers with ITDM who seek to
operate in interstate commerce. In addition, the Federal Motor Carrier
Safety Regulations (FMCSRs) are not contrary to the Americans with
Disabilities Act (ADA) of 1990. The mandates of the ADA do not require
that FMCSA alter the driver qualification requirements contained in 49
CFR part 391. The Senate report on the ADA, submitted by its Committee
on Labor and Human Resources, included the following explanation:
With respect to covered entities subject to rules promulgated by
the Department of Transportation regarding physical qualifications
for drivers of certain classifications of motor vehicles, it is the
Committee's intent that a person with a disability applying for or
currently holding a job subject to these standards must be able to
satisfy these physical qualification standards in order to be
considered a qualified individual with a disability under Title I of
this legislation. S. Rep. 101-116, at 27 (1989).
FMSCA relies on the expert medical opinion of the endocrinologist
and the medical examiner, who are required to analyze individual
ability to control and manage the diabetic condition, including the
individual ability and willingness of the driver to monitor blood
glucose level on an ongoing basis. Until the Agency issues a Final
Rule, however, insulin-treated diabetic drivers must continue to apply
for exemptions from FMCSA, and request renewals of such exemptions in a
timely manner. FMCSA will grant exemptions only to those applicants who
meet the specific conditions and comply with all the requirements of
After considering the comments to the docket and based upon its
evaluation of the exemption application, FMCSA exempts Thomas G. Deke
from the ITDM standard in 49 CFR 391.41(b)(3), subject to the
conditions listed under "Conditions and Requirements" above.
In accordance with 49 U.S.C. 31136(e) and 31315, the exemption will
be valid for two years unless revoked earlier by FMCSA. The exemption
will be revoked if: (1) The person fails to comply with the terms and
conditions of the exemption; (2) the exemption has resulted in a lower
level of safety than was maintained before it was granted; or (3)
continuation of the exemption would not be consistent with the goals
and objectives of 49 U.S.C. 31315 and 31136. If the exemption is still
effective at the end of the 2-year period, the person may apply to
FMCSA for a renewal under procedures in effect at that time.
Issued on: May 12, 2006.
Rose A. McMurray,
Associate Administrator, Policy and Program Development.
[FR Doc. E6-7540 Filed 5-17-06; 8:45 am]
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