[Federal Register Volume 71, Number 96 (Thursday, May 18, 2006)]
[Notices]
[Pages 28913-28914]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-7540]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2006-24016]


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, (202) 366-4001, [email protected], 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)

[[Page 28914]]

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.
 [FR Doc. E6-7540 Filed 5-17-06; 8:45 am]
BILLING CODE 4910-EX-P