[Federal Register Volume 67, Number 78 (Tuesday, April 23, 2002)]
[Notices]
[Pages 19798-19800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9940]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2001-11426]
Qualification of Drivers; Exemption Applications; Vision
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition.
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SUMMARY: FMCSA announces its decision to exempt 36 individuals from the
vision requirement in 49 CFR 391.41(b)(10).
DATES: April 23, 2002.
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
Thirty-six individuals petitioned FMCSA for an exemption from the
vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of
commercial motor vehicles (CMVs) in interstate commerce. They are:
Louis N. Adams, Guy M. Alloway, Lyle H. Banser, Paul R. Barron, Lloyd
J. Botsford, Joseph E. Buck, Sr., Ronald M. Calvin, Rusbel P.
Contreras, Timothy J. Droeger, Robert A. Fogg, Paul D. Gaither, David
L. Grajiola, David L. Gregory, Walter D. Hague, Jr., Sammy K. Hines,
Jeffrey J. Hoffman, Marshall L. Hood, Edward W. Hosier, Edmond L. Inge,
Sr., James A. Johnson, Charles F. Koble, Robert W. Lantis, Lucio Leal,
Terry W. Lytle, Earl R. Mark, James J. McCabe, Richard W. Neyens,
Anthony G. Parrish, Bill L. Pearcy, Robert H. Rogers, Bobby C. Spencer,
Mark J. Stevwing, Clarence C. Trump, Jr., Dennis R. Ward, Frankie A.
Wilborn, and Jeffrey L. Wuollett.
Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption
for a 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.'' The statute also allows the
agency to renew exemptions at the end of the 2-year period.
Accordingly, FMCSA has evaluated the 36 petitions on their merits and
made a determination to grant the exemptions to all of them. On March
7, 2002, the agency published notice of its receipt of applications
from these 36 individuals, and requested comments from the public (67
FR 10471). The comment period closed on April 8, 2002. Four comments
were received, and their contents were carefully considered by 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
FMCSA's (and previously the FHWA's) view that the present standard is
reasonable and necessary as a general standard to ensure highway
safety. 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 36 applicants fall into this category. They are unable to meet
the vision standard in one eye for various reasons, including
amblyopia, macular scars, and loss of an eye due to trauma. In most
cases, their eye conditions were not recently developed. All but nine
of the applicants were either born with their vision impairments or
have had them since childhood. The nine individuals who sustained their
vision conditions as adults have had them for periods ranging from 6 to
42 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 36 drivers have been
authorized to drive a CMV in intrastate commerce, even though their
vision disqualifies them from driving in
[[Page 19799]]
interstate commerce. They have driven CMVs with their limited vision
for careers ranging from 6 to 56 years. In the past 3 years, the 36
drivers had 9 convictions for traffic violations among them. Seven of
these convictions were for Speeding. The other convictions consisted
of: ``Violation of Red Light Signal'' and ``Improper Turning.'' Two
drivers were 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 March 7, 2002,
notice (67 FR 10471). 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 67
FR 10471.
Basis for Exemption Determination
Under 49 U.S.C. 31315 and 31136(e), 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, 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, 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 36 applicants receiving an exemption, we note that cumulatively the
applicants have had only two accidents and nine traffic violations in
the last 3 years. 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, 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, 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, FMCSA will impose
requirements on the 36 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.
[[Page 19800]]
Discussion of Comments
FMCSA received three comments in this proceeding. The comments were
considered and are discussed below.
A letter was received from Babette E. Hosier, stating that drivers
who have been driving in the past with visual impairment should be
allowed to continue operating a CMV as long as their eye doctors report
that they are capable of operating a CMV. FMCSA does not believe that
vision exemptions should rest solely on the certification of an
ophthalmologist or optometrist, for the reasons stated above under the
heading ``Basis for Exemption Determination.''
Two individuals wrote in support of granting Mr. Hosier a vision
exemption.
The Advocates for Highway and Auto Safety (AHAS) expresses
continued opposition to FMCSA's policy to grant exemptions from the
Federal Motor Carrier Safety Regulations, including the driver
qualification standards. Specifically, AHAS: (1) Objects to the manner
in which 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 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.
Conclusion
After considering the comments to the docket and based upon its
evaluation of the 36 exemption applications in accordance with
Rauenhorst v. United States Department of Transportation, Federal
Highway Administration, 95 F.3d 715 (8th Cir. 1996), FMCSA exempts
Louis N. Adams, Guy M. Alloway, Lyle H. Banser, Paul R. Barron, Lloyd
J. Botsford, Joseph E. Buck, Sr., Ronald M. Calvin, Rusbel P.
Contreras, Timothy J. Droeger, Robert A. Fogg, Paul D. Gaither, David
L. Grajiola, David L. Gregory, Walter D. Hague, Jr., Sammy K. Hines,
Jeffrey J. Hoffman, Marshall L. Hood, Edward W. Hosier, Edmond L. Inge,
Sr., James A. Johnson, Charles F. Koble, Robert W. Lantis, Lucio Leal,
Terry W. Lytle, Earl R. Mark, James J. McCabe, Richard W. Neyens,
Anthony G. Parrish, Bill L. Pearcy, Robert H. Rogers, Bobby C. Spencer,
Mark J. Stevwing, Clarence C. Trump, Jr., Dennis R. Ward, Frankie A.
Wilborn, and Jeffrey L. Wuollett 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 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: April 18, 2002.
Brian M. McLaughlin,
Associate Administrator for Policy and Program Development.
[FR Doc. 02-9940 Filed 4-22-02; 8:45 am]
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