02-6047. Alternative Physical Qualification Standards for the Loss or Impairment of Limbs; Exemption Application for Kevin Howell

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of application for exemption; request for comments.

SUMMARY:

This notice announces the FMCSA's receipt of an application from Mr. Kevin Howell for an exemption from the Federal Motor Carrier Safety Regulations (FMCSRs) alternative physical qualification standards for the loss or impairment of limbs. Mr. Howell's right arm was amputated at the shoulder. Mr. Howell is applying for an exemption to allow him to operate a commercial motor vehicle (CMV) in interstate commerce without a prosthesis. Mr. Howell 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 the loss or impairment of limbs set forth in 49 CFR 391.41 (b)(1) and 391.49.

DATES:

Comments must be received on or before April 12, 2002.

ADDRESSES:

You can mail or 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 submissions of other commenters at http://dms.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 include a copy of the acknowledgement page that appears after you submit comments electronically.

FOR FURTHER INFORMATION CONTACT:

For information about the exemption in this notice, Ms. Teresa Doggett, Office of Bus and Truck Standards and Operations, [phone]; for information about legal issues related to this notice, Mr. Joseph Solomey, Office of the Chief Counsel, [phone], FMCSA, 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

Title 49 of the United States Code (U.S.C) sections 31315 and 31136, requires the FMCSA to publish a notice in the Federal Register for each exemption requested, explaining that the request has been filed; providing the public with an opportunity to inspect the safety analysis and any other relevant information known to the agency; and commenting on the request (49 U.S.C. 31315(b)(4)(A)). Prior to granting a request for an exemption, the agency must publish in the Federal Register the name of the person granted the exemption, the provisions from which the person will be exempt, the effective period, and all terms and conditions of the exemption (49 U.S.C. 31315 (b)(4)(B)). 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 absent such exemption (49 U.S.C. 31315(b)(6)).

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 procedures used to process them.

FMCSA is responsible for the administration and enforcement of the Federal Motor Carrier Safety Regulations (FMCSRs), including the physical qualifications of CMV drivers. Section 391.41(b)(1) of the FMCSRs states that a person is physically qualified to drive a CMV if he or she has, among other things, “no loss of a foot, a leg, a hand or an arm, or has been 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 applications a medical evaluation summary that, among other things, establishes 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” [emphasis added].

Kevin Howell's Application for an Exemption

Mr. Kevin Howell is a commercial motor vehicle (CMV) driver whose right arm was amputated at the shoulder. He is an owner-operator motor carrier and his principal place of business is located in Hooper, Utah. On November 3, 2001, Mr. Howell applied for a SPE certification by filing an application with the FMCSA's Utah State Director. By letter dated November 19, 2001, Mr. Howell's SPE application was deferred until he obtained a prosthetic or orthotic device and could demonstrate the power grasp and precision prehension required under the alternative physical qualification standards of 49 CFR 391.49. On November 21, 2001, Mr. Howell applied for an exemption from the Federal alternative physical qualification standards for the loss or impairment of limbs and the use of a prosthetic device when operating CMVs in interstate commerce (49 CFR 391.41(b)(1) and 49 CFR 391.49). A copy of the application is in the docket.

Mr. Howell indicated in his application that he was granted a limb waiver in 1973 that allows him to operate without a prosthetic device when driving CMVs in interstate commerce. The agency has no record of the waiver. If a waiver had been issued, Mr. Howell would have been required to renew the waiver every 2 years in accordance with conditions applicable to waivers at the time. The FMCSA has records for other drivers who were granted limb waivers in the 1970's and who have renewed their waivers every 2 years, however, we find no record that Mr. Howell sought a renewal in the years following 1973.

Mr. Howell stated in his application for exemption that he has had his Class A CDL for 27 years, with no restrictions other than corrective lenses. He owns and operates a CMV with manual transmission on the right side of the steering column. He indicated that he transports cargo for various other motor carrier companies and that he will be the only driver affected if the FMCSA grants the exemption requested here. Mr. Howell stated that he does not anticipate any adverse safety impacts created by this exemption. As support for his contention, he cited his current motor vehicle driving record, with no current deficiencies, including no speeding tickets or accidents. Mr. Howell stated that he has driven over 1,000,000 miles and has never had an accident, injury or caused property damage as a result of driving without a right arm. He maintains that this clearly shows a very high level of safety and awareness, as well as excellent driving skills, ability and judgment.

Request for Comments

In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA is requesting public comment from all interested persons on whether the exemption application from Mr. Kevin Howell should be granted. All comments received before the closing date will be considered and will be available for examination in the docket at the location listed under the address section of this notice.

Issued on: March 8, 2002.

Julie Anna Cirillo,

Assistant Administrator.