[Federal Register Volume 67, Number 163 (Thursday, August 22, 2002)]
[Notices]
[Pages 54525-54527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21476]


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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

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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, (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