[Federal Register Volume 70, Number 34 (Tuesday, February 22, 2005)]
[Notices]
[Pages 8659-8661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-3256]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2002-12423]


Qualification of Drivers; Exemption Applications; Vision

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of renewal of exemption; request for comments.

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SUMMARY: This notice publishes the FMCSA decision to renew the 
exemption from the vision requirements in the Federal Motor Carrier 
Safety Regulations (FMCSRs) for Mr. Jerry W. Parker. Mr. Parker does 
not meet the vision requirements because of severe vision loss in his 
right eye. He meets the alternative physical qualification standards in 
the FMCSRs for the loss of a limb by holding a Skill Performance 
Evaluation (SPE) certificate. In order for Mr. Parker to continue to 
operate a commercial motor vehicle (CMV) in interstate commerce, he 
must continue to hold an SPE certificate and be granted a renewal 
exemption from the vision requirements.

DATES: This decision is effective February 25, 2005. Comments from 
interested persons should be submitted by March 24, 2005.

ADDRESSES: You may submit comments identified by DOT DMS Docket Number 
FMCSA-2002-12423 by any of the following methods:
     Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Room PL-401, Washington, DC 
20590-0001.
     Hand Delivery: 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.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the on-line instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number for this notice. For detailed instructions on submitting 
comments and additional information on the rulemaking process, see the 
Public Participation heading of the SUPPLEMENTARY INFORMATION section 
of this document. Note that all comments received will be posted 
without change to http://dms.dot.gov, including any personal 
information provided. Please see the Privacy Act heading under 
Regulatory Notices.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to 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.

FOR FURTHER INFORMATION CONTACT: Maggi Gunnels, Office of Bus and Truck 
Standards and Operations, (202) 366-

[[Page 8660]]

4001, FMCSA, Department of Transportation, 400 Seventh Street, SW., 
Washington, DC 20590-0001. Office hours are from 8 a.m. to 5 p.m., 
e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: Public Participation: The DMS is available 
24 hours each day, 365 days each year. You can get electronic 
submission and retrieval help guidelines under the ``help'' section of 
the DMS Web site. If you want us to notify you that we received your 
comments, please include a self-addressed, stamped envelope or postcard 
or print the acknowledgement page that appears after submitting 
comments online.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review the 
Department of Transportation's complete Privacy Act Statement in the 
Federal Register published on April 11, 2000 (Volume 65, Number 70; 
Pages 19477-78) or you may visit http://dms.dot.gov.

Background

    Mr. Jerry W. Parker applied for a waiver from the Federal standards 
for vision at 49 CFR 391.41(b)(10) in 1996 under criteria established 
under the agency's former Vision Waiver Program. The criteria included 
a provision that vision waiver applicants must be otherwise medically 
qualified under all other physical qualification requirements at 49 CFR 
391.41. When the Federal Highway Administration (FHWA) (FMCSA's 
predecessor agency) discovered that Mr. Parker's left arm had been 
amputated at the shoulder, it denied his application for a vision 
waiver after concluding there was insufficient evidence to determine if 
someone with both a vision impairment and an amputated limb could 
safely operate a CMV.
    Mr. Parker filed a petition for review with the United States Court 
of Appeals for the Sixth Circuit. The Sixth Circuit reversed FHWA's 
denial of Mr. Parker's exemption application and remanded the case to 
the agency with instructions to create a functional capacity test which 
would enable the agency to evaluate Mr. Parker's driving skills based 
upon his individual capabilities (Jerry W. Parker v. United States 
Department of Transportation, 207 F. 3d 359 (6th Cir. 2000)).
    On February 25, 2003, the FMCSA published a notice of final 
disposition (68 FR 8794) announcing its decision to exempt Mr. Parker 
from the vision requirements in the FMCSRs. In response to the Court's 
decision, the FMCSA determined that Mr. Parker's request for a vision 
exemption would be considered on its own merits as outlined within the 
vision exemption program and the regulations found in 49 CFR part 381. 
Additionally, the FMCSA decided it would evaluate Mr. Parker's 
amputation under the alternative physical qualification standards for 
the loss of limbs found in 49 CFR 391.41(b)(1) and 391.49. Under 49 CFR 
391.49, a person who is not physically qualified to drive because of 
the loss of a limb, and who is otherwise qualified to drive a CMV, may 
drive a CMV if FMCSA grants a Skill Performance Evaluation (SPE) 
Certificate to that person. In other words, each impairment that would 
preclude Mr. Parker from complying with the physical qualification 
standards would be considered and evaluated separately under the 
agency's process for granting or denying the vision exemption 
application and the SPE certificate.
    Although the FMCSA granted Mr. Parker a vision exemption, this did 
not allow him to drive in interstate commerce until he met the 
alternative physical qualification standards for the loss of limbs and 
the use of a prosthetic device as outlined within 49 CFR 391.41(b)(1) 
and 391.49 (SPE certificate). With the decision to grant a vision 
exemption (68 FR 8794), Mr. Parker was ``otherwise'' qualified to drive 
a CMV, when he met the alternate physical qualification procedures 
under the SPE certification program. The FMCSA deferred making a 
decision regarding Mr. Parker's qualification under the Federal 
standards for loss of limbs until he obtained a prosthetic device, 
became proficient in using the device, and successfully completed the 
SPE certification process.
    Mr. Parker obtained a prosthetic device and successfully completed 
the SPE process. The FMCSA granted him an SPE certificate effective 
April 30, 2004, for not more than 2 years, subject to strict adherence 
to the provisions of the certificate. Mr. Parker may renew the 
certificate at the end of the 2-year period by submitting a renewal 
application. The certificate requires Mr. Parker to use a left arm 
prosthetic with a modified terminal device consisting of a ball mounted 
on a piece of a bar that protrudes from his prosthetic. The certificate 
limits Mr. Parker to the operation of a power unit of a tractor-trailer 
combination that has a steering wheel adapter to receive the modified 
terminal device on his prosthetic. In addition, the power unit must 
have right side-mounted controls for turn signals, washer operation, 
and tractor-trailer marker lights. As a condition of the certificate, 
Mr. Parker's employing motor carrier must report in writing to the 
FMCSA all accidents, arrests, suspensions, revocations, withdrawals of 
driver licenses or permits, and convictions involving Mr. Parker within 
30 days after occurrence.

Exemption Decision

    Mr. Parker does not meet the vision requirements of 49 CFR 
391.41(b)(10) because of severe vision loss in his right eye. He meets 
the alternative physical qualification standards of 49 CFR 391.49 by 
holding an SPE certificate. In order for Mr. Parker to continue to 
operate a CMV in interstate commerce, he must continue to hold an SPE 
certificate and be granted a renewal exemption from the vision 
requirements.
    Mr. Parker has requested renewal of his vision exemption in a 
timely manner and in accordance with the procedures for requesting an 
exemption (including renewals) set out in 49 CFR part 381. The FMCSA 
has evaluated his application for renewal on its merits and decided to 
extend the exemption for a renewable 2-year period.
    The exemption is extended subject to the following conditions: (1) 
Mr. Parker must have a physical exam every year by (a) An 
ophthalmologist or optometrist who attests that the vision in the 
better eye continues to meet the standard in 49 CFR 391.41(b)(10), and 
(b) a medical examiner who attests that Mr. Parker is otherwise 
physically qualified under 49 CFR 391.41; (2) Mr. Parker must provide a 
copy of the ophthalmologist's or optometrist's report to the medical 
examiner at the time of the annual medical examination; and (3) Mr. 
Parker must provide a copy of the annual medical certification to his 
employer for retention in his driver's qualification file and retain a 
copy of the certification on his person while driving for presentation 
to a duly authorized Federal, State, or local enforcement official.
    The exemption will be valid for 2 years unless rescinded earlier by 
the FMCSA. The exemption will be rescinded if: (1) Mr. Parker 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(e).

[[Page 8661]]

Basis for Renewing the Exemption

    Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no 
longer than 2 years from its approval date and may be renewed upon 
application for additional 2-year periods. In accordance with 49 U.S.C. 
31315 and 31136(e), Mr. Parker has satisfied the entry conditions for 
obtaining an exemption from the vision requirements (67 FR 54525, 68 FR 
8794 and 68 FR 10583). He has requested timely renewal of the vision 
exemption and has submitted evidence showing that the vision in the 
better eye continues to meet the standard specified at 49 CFR 
391.41(b)(10) and that the vision impairment is stable. In addition, a 
review of his record of safety while driving with the vision deficiency 
over the past two years indicates he continues to meet the vision 
exemption standards. He is ``otherwise'' qualified to drive a CMV 
because he meets the alternative physical qualification standards for 
the loss of a limb under 49 CFR 391.49. These factors provide an 
adequate basis for predicting his ability to continue to drive safely 
in interstate commerce. Therefore, the FMCSA concludes that extending 
the exemption for Mr. Parker for a period of two years is likely to 
achieve a level of safety equal to that existing without the exemption.

Comments

    The FMCSA will review comments received at any time concerning Mr. 
Parker's safety record and determine if the continuation of the 
exemption is consistent with the requirements at 49 U.S.C. 31315 and 
31136(e). However, the FMCSA requests that interested parties with 
specific data concerning Mr. Parker's safety record submit comments by 
March 24, 2005.
    In the past, the FMCSA has received comments from Advocates for 
Highway and Auto Safety (Advocates) expressing continued opposition to 
the FMCSA's procedures for renewing exemptions from the vision 
requirement in 49 CFR 391.41(b)(10). Specifically, Advocates objects to 
the agency's extension of the exemptions without any opportunity for 
public comment prior to the decision to renew and its reliance on a 
summary statement of evidence to make its decision to extend the 
exemption of each driver.
    The issues raised by Advocates were addressed at length in 69 FR 
51346 (August 18, 2004). The FMCSA continues to find its exemption 
process appropriate and in accordance with the statutory and regulatory 
requirements.

    Issued on: February 14, 2005.
Rose A. McMurray,
Associate Administrator, Policy and Program Development.
[FR Doc. 05-3256 Filed 2-18-05; 8:45 am]
BILLING CODE 4910-EX-P