E6-7540. Qualification of Drivers; Exemption Application From Thomas Deke; Diabetes

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 interstate commerce.

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, [phone], [e-mail], 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.

SUPPLEMENTARY INFORMATION:

Electronic Access

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.

Background

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 Missouri.

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) 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 license.

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 insulin treatment.

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 the exemption.

Conclusion

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.