[Federal Register Volume 66, Number 57 (Friday, March 23, 2001)]
[Notices]
[Pages 16311-16314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-7279]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2001-8398]
Qualification of Drivers; Exemption Applications; Vision
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition.
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SUMMARY: The FMCSA announces its decision to exempt 35 individuals from
[[Page 16312]]
the vision requirement in 49 CFR 391.41(b)(10).
DATES: March 23, 2001.
FOR FURTHER INFORMATION CONTACT: For information about the vision
exemptions in this notice, Ms. Sandra Zywokarte, Office of Bus and
Truck Standards and Operations, (202) 366-2987; for information about
legal issues related to this notice, Mr. Joe Solomey, Office of the
Chief Counsel, (202) 366-1374, FMCSA, 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:
Electronic Access
You may see all the comments online through the Document Management
System (DMS) at: http://dmses.dot.gov.
Background
Thirty-five individuals petitioned the FMCSA for an exemption of
the vision requirement in 49 CFR 391.41(b)(10), which applies to
drivers of commercial motor vehicles (CMVs) in interstate commerce.
They are: Carl W. Adams, David F. Bardsley, William E. Beckley, Joseph
M. Blankenship, Willie Burnett, Awilda S. Colon, Robert P. Conrad,
Jerald O. Edwards, William W. Ferrell, Marion R. Fox, Jr., Thomas E.
Howard, James L. Johnson, Spencer E. Leonard, John K. Love, Robert C.
Lueders, Thomas F. Marczewski, Samson B. Margison, Velmer L.
McClelland, Duane A. McCord, Gene L. Miller, John E. Musick, Bobby G.
Pool, Sr., Robert Radcliff, Jr., Randolph M. Riffey, Billy G. Saunders,
George D. Schell, Gerald L. Smith, Scottie Stewart, Clarence L. Swann,
Jr., Robert Tatum, Thaddeus E. Temoney, Roberto R. Turpaud, Roy B.
Waggoner, Harry C. Weber, and Yu Weng.
Under 49 U.S.C. 31315 and 31136(e), the FMCSA may grant an
exemption for a renewable 2-year period if it finds ``such exemption
would likely achieve a level of safety that is equivalent to, or
greater than, the level that would be achieved absent such exemption.''
Accordingly, the FMCSA has evaluated the 35 petitions on their merits
and made a determination to grant the exemptions to all of them. On
December 14, 2000, the agency published notice of its receipt of
applications from these 35 individuals, and requested comments from the
public (65 FR 78256). The comment period closed on January 16, 2001.
Two comments were received, and their contents were carefully
considered by the FMCSA in reaching the final decision to grant the
petitions.
Vision and Driving Experience of the Applicants
The vision requirement provides:
A person is physically qualified to drive a commercial motor
vehicle if that person has distant visual acuity of at least 20/40
(Snellen) in each eye without corrective lenses or visual acuity
separately corrected to 20/40 (Snellen) or better with corrective
lenses, distant binocular acuity of at least 20/40 (Snellen) in both
eyes with or without corrective lenses, field of vision of at least
70 deg. 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. 49 CFR 391.41(b)(10)
Since 1992, the Federal Highway Administration (FHWA) has
undertaken studies to determine if this vision standard should be
amended. The final report from our medical panel recommends changing
the field of vision standard from 70 deg. to 120 deg., while leaving
the visual acuity standard unchanged. (See Frank C. Berson, M.D., Mark
C. Kuperwaser, M.D., Lloyd Paul Aiello, M.D., and James W. Rosenberg,
M.D., ``Visual Requirements and Commercial Drivers,'' October 16, 1998,
filed in the docket, FHWA-98-4334.) The panel's conclusion supports the
FMCSA's (and previously the FHWA's) view that the present standard is
reasonable and necessary as a general standard to ensure highway
safety. The FMCSA also recognizes that some drivers do not meet the
vision standard, but have adapted their driving to accommodate their
vision limitation and demonstrated their ability to drive safely.
The 35 applicants fall into this category. They are unable to meet
the vision standard in one eye for various reasons, including
amblyopia, corneal and macular scars, and loss of an eye due to trauma.
In most cases, their eye conditions were not recently developed. All
but 26 of the applicants were either born with their vision impairments
or have had them since childhood. The 9 individuals who sustained their
vision conditions as adults have had them for periods ranging from 4 to
51 years.
Although each applicant has one eye which does not meet the vision
standard in 49 CFR 391.41(b)(10), each has at least 20/40 corrected
vision in the other eye and, in a doctor's opinion, has sufficient
vision to perform all the tasks necessary to operate a CMV. The
doctors' opinions are supported by the applicants' possession of valid
commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before
issuing CDLs, States subject drivers to knowledge and performance tests
designed to evaluate their qualifications to operate a CMV. All these
applicants satisfied the testing standards for their State of
residence. By meeting State licensing requirements, the applicants
demonstrated their ability to operate a commercial vehicle, with their
limited vision, to the satisfaction of the State. The Federal
interstate qualification standards, however, require more.
While possessing a valid CDL or non-CDL, these 35 drivers have been
authorized to drive a CMV in intrastate commerce, even though their
vision disqualifies them from driving in interstate commerce. They have
driven CMVs with their limited vision for careers ranging from 4 to 45
years. In the past 3 years, the 35 drivers had 11 convictions for
traffic violations among them. Seven of these convictions were for
speeding. The other convictions consisted of: ``Driver Failure to Obey
All Trucks Stop at Scales''; ``Failure to Stop''; ``Failure to Obey
Stop Sign''; and ``Failure to [Use Chains] When Required.'' One driver
was involved in an accident in a CMV, but did not receive a citation.
The qualifications, experience, and medical condition of each
applicant were stated and discussed in detail in a December 14, 2000,
notice (65 FR 78256). Since the docket comments did not focus on the
specific merits or qualifications of any applicant, we have not
repeated the individual profiles here. Our summary analysis of the
applicants as a group is supported by the information published at 65
FR 78256.
Basis for Exemption Determination
Under 49 U.S.C. 31315 and 31136(e), the FMCSA may grant an
exemption from the vision standard in 49 CFR 391.41(b)(10) if the
exemption is likely to achieve an equivalent or greater level of safety
than would be achieved without the exemption. Without the exemption,
applicants will continue to be restricted to intrastate driving. With
the exemption, applicants can drive in interstate commerce. Thus, our
analysis focuses on whether an equal or greater level of safety is
likely to be achieved by permitting these drivers to drive in
interstate commerce as opposed to restricting them to driving in
intrastate commerce.
To evaluate the effect of these exemptions on safety, the FMCSA
considered not only the medical reports about the applicants' vision,
but also their driving records and experience with the vision
deficiency. To qualify for an exemption from the vision standard, the
FMCSA requires a person
[[Page 16313]]
to present verifiable evidence that he or she has driven a commercial
vehicle safely with the vision deficiency for 3 years. Recent driving
performance is especially important in evaluating future safety,
according to several research studies designed to correlate past and
future driving performance. Results of these studies support the
principle that the best predictor of future performance by a driver is
his/her past record of accidents and traffic violations. Copies of the
studies have been added to the docket. (FHWA-98-3637)
We believe we can properly apply the principle to monocular
drivers, because data from the vision waiver program clearly
demonstrate the driving performance of experienced monocular drivers in
the program is better than that of all CMV drivers collectively. (See
61 FR 13338, 13345, March 26, 1996.) The fact that experienced
monocular drivers with good driving records in the waiver program
demonstrated their ability to drive safely supports a conclusion that
other monocular drivers, meeting the same qualifying conditions as
those required by the waiver program, are also likely to have adapted
to their vision deficiency and will continue to operate safely.
The first major research correlating past and future performance
was done in England by Greenwood and Yule in 1920. Subsequent studies,
building on that model, concluded that accident rates for the same
individual exposed to certain risks for two different time periods vary
only slightly. (See Bates and Neyman, University of California
Publications in Statistics, April 1952.) Other studies demonstrated
theories of predicting accident proneness from accident history coupled
with other factors. These factors--such as age, sex, geographic
location, mileage driven and conviction history--are used every day by
insurance companies and motor vehicle bureaus to predict the
probability of an individual experiencing future accidents. (See Weber,
Donald C., ``Accident Rate Potential: An Application of Multiple
Regression Analysis of a Poisson Process,'' Journal of American
Statistical Association, June 1971.) A 1964 California Driver Record
Study prepared by the California Department of Motor Vehicles concluded
that the best overall accident predictor for both concurrent and
nonconcurrent events is the number of single convictions. This study
used 3 consecutive years of data, comparing the experiences of drivers
in the first 2 years with their experiences in the final year.
Applying principles from these studies to the past 3-year record of
the 35 applicants receiving an exemption, we note that cumulatively the
applicants have had only one accident and 11 traffic violations in the
last 3 years. That single accident did not result in the issuance of a
citation against the applicant. The applicants achieved this record of
safety while driving with their vision impairment, demonstrating the
likelihood that they have adapted their driving skills to accommodate
their condition. As the applicants' ample driving histories with their
vision deficiencies are good predictors of future performance, the
FMCSA concludes their ability to drive safely can be projected into the
future.
We believe the applicants' intrastate driving experience and
history provide an adequate basis for predicting their ability to drive
safely in interstate commerce. Intrastate driving, like interstate
operations, involves substantial driving on highways on the interstate
system and on other roads built to interstate standards. Moreover,
driving in congested urban areas exposes the driver to more pedestrian
and vehicular traffic than exists on interstate highways. Faster
reaction to traffic and traffic signals is generally required because
distances are more compact than on highways. These conditions tax
visual capacity and driver response just as intensely as interstate
driving conditions. The veteran drivers in this proceeding have
operated CMVs safely under those conditions for at least 3 years, most
for much longer. Their experience and driving records lead us to
believe that each applicant is capable of operating in interstate
commerce as safely as he or she has been performing in intrastate
commerce. Consequently, the FMCSA finds that exempting these applicants
from the vision standard in 49 CFR 391.41(b)(10) is likely to achieve a
level of safety equal to that existing without the exemption. For this
reason, the agency will grant the exemptions for the 2-year period
allowed by 49 U.S.C. 31315 and 31136(e).
We recognize that the vision of an applicant may change and affect
his/her ability to operate a commercial vehicle as safely as in the
past. As a condition of the exemption, therefore, the FMCSA will impose
requirements on the 35 individuals consistent with the grandfathering
provisions applied to drivers who participated in the agency's vision
waiver program.
Those requirements are found at 49 CFR 391.64(b) and include the
following: (1) That each individual be physically examined every year
(a) by 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) by a medical examiner who attests that the individual is
otherwise physically qualified under 49 CFR 391.41; (2) that each
individual 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) that each individual provide a copy of the annual
medical certification to the employer for retention in the driver's
qualification file, or keep a copy in his/her driver's qualification
file if he/she is self-employed. The driver must also have a copy of
the certification when driving, for presentation to a duly authorized
Federal, State, or local enforcement official.
Discussion of Comments
The FMCSA received two comments in this proceeding. The comments
were considered and are discussed below.
James L. Johnson, one of the applicants under consideration, wrote
encouraging the FMCSA to approve his application for an exemption.
Advocates for Highway and Auto Safety (AHAS) expresses continued
opposition to the FMCSA's policy to grant exemptions from the Federal
Motor Carrier Safety Regulations (FMCSRs), including the driver
qualification standards. Specifically, the AHAS: (1) Objects to the
manner in which the FMCSA presents driver information to the public and
makes safety determinations; (2) objects to the agency's reliance on
conclusions drawn from the vision waiver program; (3) claims the agency
has misinterpreted statutory language on the granting of exemptions (49
U.S.C. 31315 and 31136(e)), and finally; (4) suggests that a recent
Supreme Court decision affects the legal validity of vision exemptions.
The issues raised by the AHAS were addressed at length in 64 FR
51568 (September 23, 1999), 64 FR 66962 (November 30, 1999), 64 FR
69586 (December 13, 1999), 65 FR 159 (January 3, 2000), 65 FR 57230
(September 21, 2000), and 66 FR 13825 (March 7, 2001). We will not
address these points again here, but refer interested parties to those
earlier discussions.
Notwithstanding the FMCSA's ongoing review of the vision standard,
as evidenced by the medical panel's report dated October 16, 1998, and
filed in this docket, the FMCSA must comply with Rauenhorst v. United
States Department of Transportation, Federal Highway Administration, 95
F.3d 715 (8th Cir. 1996), and grant individual exemptions under
standards that are consistent with public safety. Meeting those
standards, the 35 veteran drivers
[[Page 16314]]
in this case have demonstrated to our satisfaction that they can
continue to operate a CMV with their current vision safely in
interstate commerce, because they have demonstrated their ability in
intrastate commerce. Accordingly, they qualify for an exemption under
49 U.S.C. 31315 and 31136(e).
Conclusion
After considering the comments to the docket and based upon its
evaluation of the 35 exemption applications in accordance with the
Rauenhorst decision, the FMCSA exempts Carl W. Adams, David F.
Bardsley, William E. Beckley, Joseph M. Blankenship, Willie Burnett,
Awilda S. Colon, Robert P. Conrad, Jerald O. Edwards, William W.
Ferrell, Marion R. Fox, Jr., Thomas E. Howard, James L. Johnson,
Spencer E. Leonard, John K. Love, Robert C. Lueders, Thomas F.
Marczewski, Samson B. Margison, Velmer L. McClelland, Duane A. McCord,
Gene L. Miller, John E. Musick, Bobby G. Pool, Sr., Robert Radcliff,
Jr., Randolph M. Riffey, Billy G. Saunders, George D. Schell, Gerald L.
Smith, Scottie Stewart, Clarence L. Swann, Jr., Robert Tatum, Thaddeus
E. Temoney, Roberto R. Turpaud, Roy B. Waggoner, Harry C. Weber, and Yu
Weng from the vision requirement in 49 CFR 391.41(b)(10), subject to
the following conditions: (1) That each individual be physically
examined every year (a) by 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) by a medical examiner who
attests that the individual is otherwise physically qualified under 49
CFR 391.41; (2) that each individual 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) that each
individual provide a copy of the annual medical certification to the
employer for retention in the driver's qualification file, or keep a
copy in his/her driver's qualification file if he/she is self-employed.
The driver must also have a copy of the certification when driving, so
it may be presented to a duly authorized Federal, State, or local
enforcement official.
In accordance with 49 U.S.C. 31315 and 31136(e), each exemption
will be valid for 2 years unless revoked earlier by the 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 the FMCSA for a renewal under procedures in effect at that time.
Authority: 49 U.S.C. 322, 31315 and 31136; 49 CFR 1.73.
Issued on: March 16, 2001.
Stephen E. Barber,
Acting Deputy Administrator, Federal Motor Carrier Safety
Administration.
[FR Doc. 01-7279 Filed 3-22-01; 8:45 am]
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