[Federal Register Volume 66, Number 123 (Tuesday, June 26, 2001)]
[Notices]
[Pages 33990-33993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16067]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket Nos. FMCSA-2000-7918 and FMCSA-2001-9258]
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 41 individuals from
the vision requirement in 49 CFR 391.41(b)(10).
DATES: June 26, 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. Joseph 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
Forty-one individuals petitioned the FMCSA for an exemption from
the
[[Page 33991]]
vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of
commercial motor vehicles (CMVs) in interstate commerce. They are:
Jerry T. Branam, Daniel R. Brewer, William A. Burgoyne, Brett L.
Condon, Mark W. Coulson, Thomas W. Craig, Myron D. Dixon, Terry W.
Dooley, Don W. Dotson, James W. Harris, Larry M. Hawkins, George A.
Hoffman III, Lee P. Holt, Steve L. Hopkins, Donald A. Jahr, Alfred C.
Jenkins, Donald L. Jensen, Robert L. Joiner, Jr., James P. Jones,
Clarence R. Keller, Bruce E. King, Larry J. Lang, Dennis D. Lesperance,
Earnest W. Lewis, John W. Locke, Herman G. Lovell, Ronald L. Maynard,
Larry T. Morrison, Gayle G. Olson, Eddie L. Paschal, Thomas G. Raymond,
Richard S. Rehbein, David E. Sanders, Richard C. Simms, David B.
Speller, Royal H. Stephens, Tyson C. Stone, Lynn D. Veach, Kevin L.
Wickard, Charles M. Wilkins, and Michael C. Wines.
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 41 petitions on their merits
and made a determination to grant the exemptions to all of them. On
April 3, 2001, the agency published notice of its receipt of
applications from 38 of these individuals, and requested comments from
the public (66 FR 17743). The comment period closed on May 3, 2001. In
the cases of Mr. Burgoyne, Mr. Dotson, and Mr. Raymond, the agency
published notice of receipt of their applications along with 62 other
applications, and requested comments from the public on November 3,
2000 (65 FR 66286). The decisions on their applications were not made
earlier because the agency had received additional information from its
ongoing checks of their motor vehicle records and was evaluating that
information (66 FR 13826, March 7, 2001). The FMCSA received one
comment in response to the notice of 38 applications on April 3, 2001,
and two comments in response to the notice of 65 applications on
November 3, 2000. One comment received from the November 3, 2000,
notice pertained to an applicant not being considered here, and was
addressed at 66 FR 13828 (March 7, 2001). The contents of the other two
comments were carefully considered in reaching the final decision to
grant the petitions in this notice.
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), the
predecessor agency to the FMCSA, has undertaken studies to determine if
this vision standard should be amended. The final report from the
medical panel recommended 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 41 applicants fall into this category. They are unable to meet
the vision standard in one eye for various reasons, including
amblyopia, corneal and retinal scars, and loss of an eye due to trauma.
In most cases, their eye conditions were not recently developed. All
but 13 of the applicants were either born with their vision impairments
or have had them since childhood. The 13 individuals who sustained
their vision conditions as adults have had them for periods ranging
from 4 to 40 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 commercial motor
vehicle (CMV). The doctors' opinions are supported by the applicants'
possession of valid commercial driver's licenses (CDLs) or non-CDLs
that allow them 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 41 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 3 to 40
years. In the past 3 years, the drivers had 8 convictions for traffic
violations among them. Five of these convictions were for Speeding, two
were for Failure to Obey Traffic Instructions Sign/Device, and one was
for Following Too Closely. Two drivers were involved in accidents in
their CMVs, but did not receive a citation.
The qualifications, experience, and medical condition of each
applicant were stated and discussed in detail in the April 3, 2001, and
November 3, 2000, notices (66 FR 17743 and 65 FR 66286). Since the
docket comments did not focus on the specific merits or qualifications
of any applicant, we have not repeated the individual profiles here.
One change is noted: Mr. Burgoyne's driving record shows he was
involved in a CMV accident after publication of the notice on November
3, 2000. In a very heavy snowstorm, the vehicle he was driving was hit
in the rear by another vehicle. He was not cited for the accident. Our
summary analysis of the applicants as a group is supported by the
information published at 66 FR 17743 and 65 FR 66286.
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
[[Page 33992]]
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 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 41 applicants, we note that cumulatively the applicants have had
only 2 accidents and 8 traffic violations in the last 3 years. Neither
of the accidents resulted in the issuance of a citation against the
applicants. 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 provides
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 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 one comment in response to the notice of 38
applications on April 3, 2001 (66 FR 17743), and two comments in
response to the notice of 65 applications on November 3, 2000 (65 FR
66286). One comment received from the November 3, 2000, notice
pertained to an applicant not being considered here, and was addressed
at 66 FR 13828 (March 7, 2001). The other comments were considered for
this notice and are discussed below.
Comments were received from the Advocates for Highway and Auto
Safety (AHAS) in response to both notices of applications. The 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
[[Page 33993]]
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 41 veteran drivers in this case have demonstrated to our
satisfaction that they can continue to operate a CMV with their current
vision condition 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 41 exemption applications in accordance with the
Rauenhorst decision, the FMCSA exempts Jerry T. Branam, Daniel R.
Brewer, William A. Burgoyne, Brett L. Condon, Mark W. Coulson, Thomas
W. Craig, Myron D. Dixon, Terry W. Dooley, Don W. Dotson, James W.
Harris, Larry M. Hawkins, George A. Hoffman III, Lee P. Holt, Steve L.
Hopkins, Donald A. Jahr, Alfred C. Jenkins, Donald L. Jensen, Robert L.
Joiner, Jr., James P. Jones, Clarence R. Keller, Bruce E. King, Larry
J. Lang, Dennis D. Lesperance, Earnest W. Lewis, John W. Locke, Herman
G. Lovell, Ronald L. Maynard, Larry T. Morrison, Gayle G. Olson, Eddie
L. Paschal, Thomas G. Raymond, Richard S. Rehbein, David E. Sanders,
Richard C. Simms, David B. Speller, Royal H. Stephens, Tyson C. Stone,
Lynn D. Veach, Kevin L. Wickard, Charles M. Wilkins, and Michael C.
Wines 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 rescinded earlier by the FMCSA. The
exemption will be rescinded 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; and 49 CFR 1.73.
Issued on: June 21, 2001.
Brian M. McLaughlin,
Acting Deputy Administrator.
[FR Doc. 01-16067 Filed 6-22-01; 11:28 am]
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