02-21476. 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.

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 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://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, [phone]; 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 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.