[Federal Register Volume 68, Number 37 (Tuesday, February 25, 2003)]
[Notices]
[Pages 8794-8798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4425]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2002-12423]


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 Mr. Jerry W. Parker 
from the vision requirement in the Federal Motor Carrier Safety

[[Page 8795]]

Regulations (FMCSRs). The FMCSA is deferring its decision regarding Mr. 
Parker's qualification under the Federal alternative physical 
qualification standards for loss of limbs until he obtains a prosthetic 
device, becomes proficient in using the device, and completes the Skill 
Performance Evaluation (SPE) certification process. Although Mr. Parker 
is exempted from the vision requirements, he may not operate a 
commercial vehicle in interstate commerce until he meets the physical 
qualification standard for the loss of limbs, and this agency issues a 
SPE certificate.

DATES: February 25, 2003.

FOR FURTHER INFORMATION CONTACT: For information about the vision 
exemption in this notice, you may contact Ms. Sandra Zywokarte, Office 
of Bus and Truck Standards and Operations, (202) 366-2987, 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: You may see all the comments online through 
the Document Management System (DMS) at: http://dmses.dot.gov.

Background

    On August 22, 2002, the FMCSA published a notice of applications 
(67 FR 54525) requesting comments on Mr. Parker's request for an 
exemption from the Federal standards for vision at 49 CFR 391.41(b)(10) 
and for the loss of limbs at 49 CFR 391.41(b)(1). Mr. Parker does not 
meet the vision requirements because of severe vision loss in his right 
eye. He does not meet the physical qualification requirements for the 
loss of limbs as he is missing his left arm and is unable to 
demonstrate power grasp prehension and precision prehension with each 
upper limb separately. To operate in interstate commerce, Mr. Parker 
must be granted an exemption from the vision requirements and must be 
granted a skill performance evaluation (SPE) certificate.
    Mr. Parker applied for a waiver from the vision requirements 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 agency 
discovered that Mr. Parker's left arm had been amputated at the 
shoulder, it denied his application for a vision waiver because the 
agency determined that there was insufficient evidence to determine if 
someone with both a vision impairment and amputation 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 the 
agency's denial, and remanded the case to the agency with instructions 
to create a functional capacity test consistent with FMCSA's findings 
that an individual's driving record is indicative of future performance 
which will 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)). Mr. Parker's request 
for regulatory relief is discussed in detail in the August 22, 2002, 
notice (67 FR 54525).
    In response to the Court's decision, the FMCSA has determined that 
Mr. Parker's request for a vision exemption will 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 will 
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. 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 or SPE certificate.
    Under 49 U.S.C. 31315 and 31136(e), the 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, the FMCSA has evaluated Mr. Parker's application for a 
vision exemption on its merits and made a determination to grant the 
exemption. The comment period closed on September 23, 2002. Seven 
comments were received, and their contents were carefully considered by 
the FMCSA in reaching the final decision to grant the exemption.
    Although FMCSA is granting Mr. Parker a vision exemption, this does 
not allow Mr. Parker to drive in interstate commerce until he meets 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).

Deferring Decision on Mr. Parker Qualifying Under Sec. Sec.  
391.41(b)(1) and 391.49

    With today's decision to grant a vision exemption, Mr. Parker is 
``otherwise'' qualified to drive a commercial motor vehicle, when he 
meets the alternate physical qualification procedures under the SPE 
certification program. FMCSA is deferring making a decision regarding 
Mr. Parker's qualification under the Federal standards for loss of 
limbs until he obtains a prosthetic device, becomes proficient in using 
the device, and completes the SPE.
    FMCSA has a SPE certification process that allows limb-amputee and 
limb-impairment CMV drivers to demonstrate, on an individual basis, 
their ability to operate safely the specific vehicle they intend to 
drive. Drivers must be able to demonstrate power grasp prehension (the 
ability to hold, clutch, clasp, or seize the steering wheel firmly) and 
precision prehension (the ability to effectively turn switches on and 
off and control other vehicle equipment while performing routine and 
emergency driver operations) with each upper limb separately (Sec.  
391.49(d)(3)(i)(B)). Over the years, FMCSA has granted more than 2,000 
SPE certificates to CMV drivers certifying their capability to operate 
legally and safely over the nation's highways.
    Based on the information provided by Mr. Parker, he does not use a 
prosthetic device. Mr. Parker is missing his left arm and is unable to 
demonstrate power grasp prehension and precision prehension with each 
arm as required under the FMCSRs. Mr. Parker will need to obtain and 
wear a prosthetic or orthotic device, which enables him to demonstrate 
power grasp and precision prehension, and become proficient in using 
the device before we are able to proceed with the SPE certification 
process. Once Mr. Parker obtains a prosthetic device and can 
demonstrate power grasp prehension and precision prehension, FMCSA will 
provide him the opportunity to demonstrate, on an individual basis, his 
ability to operate safely the specific vehicle he intends to drive. 
This evaluation will include driving and non-driving safety related 
activities conducted by an Agency qualified SPE examiner.
    Mr. Parker submitted to a road test conducted by a retired State 
Trooper. This individual is not certified under FMCSA's SPE program to 
administer an SPE evaluation, and that road test was not administered 
in accordance with the regulations found at 49 CFR 391.49.

[[Page 8796]]

Consequently, the FMCSA cannot accept the results of that test.
    The FMCSRs provide a standard set of requirements for all CMV 
drivers who wish to, or who do operate in interstate commerce. The 
medical standard in 49 CFR 391.41(b)(1), or the alternative physical 
qualification standards for the loss of limbs found in 49 CFR 391.49, 
are based upon identified critical driving tasks associated with 
specific types of amputation or limb-impairments as outlined by the 
Krusen Center for Research and Engineering of the Moss Rehabilitation 
Hospital in Philadelphia, Pennsylvania. These standards were 
incorporated into the agency's regulations in 1985, and require a 
properly fitted and appropriate prosthesis, the demonstration of 
proficient use of the prosthesis, and the requirement of the use of the 
device while driving. Under existing Federal regulations, States may 
enforce safety regulations governing intrastate operations that vary 
from the Federal Motor Carrier Safety Regulations. The Motor Carrier 
Safety Assistance Program (49 CFR part 350) includes tolerance 
guidelines governing State oversight of intrastate commerce. Consistent 
with these requirements, the State of Ohio has adopted intrastate 
regulations governing commercial driver vision qualifications. Here, 
the FMCSA must assure all other States, in which Mr. Parker might 
operate, that he is fully qualified under the Federal regulations. We 
are unable to reach that conclusion at this time, but we stand ready to 
immediately proceed with the SPE evaluation process when Mr. Parker 
obtains a prosthesis and can demonstrate the adequate use of that 
device in accordance with the alternative physical qualification 
standards.

Vision and Driving Experience of the Applicant

    The vision requirement in the FMCSRs 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)).
    Beginning in 1992, the Federal Highway Administration (FHWA) has 
undertaken studies to determine if this vision standard should be 
amended. The final report from our most recent vision 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 supported 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.
    Mr. Parker falls into this category. He is unable to meet the 
vision standard in his right eye because of a congenital eye condition 
known as Coats disease. However, he has corrected vision of 20/20 in 
his left eye and, in a doctor's opinion, has sufficient vision to 
perform all the tasks necessary to operate a CMV. The doctor's opinion 
is supported by the applicant's possession of valid commercial driver's 
license (CDL) to operate CMVs in intrastate commerce. Before issuing 
CDLs, States subject drivers to knowledge and performance tests 
designed to evaluate their qualifications to operate a CMV. Mr. Parker 
satisfied the testing standards for his State of residence. By meeting 
State licensing requirements, Mr. Parker demonstrated his ability to 
operate a commercial vehicle in intrastate, with his limited vision, to 
the satisfaction of his home State.
    Possessing a valid CDL, Mr. Parker has been authorized to drive a 
CMV in intrastate commerce, even though his vision disqualifies him 
from driving in interstate commerce. He has driven CMVs with his 
limited vision for 17 years. In the past 3 years, he has had no 
accidents or convictions for traffic violations in a CMV.
    Mr. Parker's qualifications, experience, and medical condition were 
stated and discussed in detail in the August 22, 2002, notice (67 FR 
54525).

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, by 
granting the exemption, it is likely that the level of safety will be 
equivalent to, or greater than, the level that would be achieved absent 
the issuance of such exemption. Although the FMCSA is granting Mr. 
Parker a vision exemption, this does not allow Mr. Parker to drive in 
interstate commerce. This is because he does not meet the medical 
standard in 49 CFR 391.41(b)(1), or the alternative physical 
qualification standards for the loss of limbs at 49 CFR 391.49.
    To evaluate the effect of the exemption on safety, the FMCSA 
considered not only the medical report about the applicant's vision, 
but also his driving record 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

[[Page 8797]]

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 Mr. Parker's past 3-year 
record, we note that he has had no accidents or traffic violations in 
the last 3 years. He achieved this record of safety while driving with 
his vision impairment, demonstrating the likelihood that he has adapted 
his driving skills to accommodate his condition. As his ample driving 
history with his vision deficiency is a good predictor of future 
performance, the FMCSA concludes his ability to drive safely can be 
projected into the future.
    We believe Mr. Parker's intrastate driving experience and history 
provide an adequate basis for predicting his ability to drive safely in 
interstate commerce with his vision impairment. While not providing the 
variety of driving conditions and varying climate and geographic 
conditions of interstate driving, intrastate driving does involve 
operating on the interstate system and 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.
    Mr. Parker has operated CMVs safely under those conditions for much 
longer than 3 years. The FMCSA finds that exempting Mr. Parker 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 exemption for the 2-year period allowed by 49 
U.S.C. 31315 and 31136(e) to Mr. Parker.
    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 Mr. Parker 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 Mr. Parker 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 he is otherwise physically 
qualified under 49 CFR 391.41; (2) that Mr. Parker 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 Mr. Parker 
provide a copy of the annual medical certification to his employer for 
retention in his driver's qualification file, or keep a copy in his 
driver's qualification file if he is self-employed. He 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 seven comments in this proceeding. The comments 
were considered and are discussed below.
    Of the seven comments, three were in favor of Mr. Parker receiving 
both exemptions. All three supporting commenters knew Mr. Parker on a 
personal level and expressed their feelings that Mr. Parker had worked 
hard and was a good and safe driver.
    The other four comments were opposed to Mr. Parker receiving 
exemptions. One individual wrote that it is not responsible to consider 
each disability separately without considering them in total to 
determine an individual driver's ability to safely operate a CMV and 
that physical qualifications are necessary since the creation of a 
commercial driving simulator that would evaluate both normal and 
emergency driving of all types is not realistic.
    The FMCSA has determined that Mr. Parker's request for exemptions 
to the qualification standards will be handled as separate applications 
for exemptions under existing procedures at 49 CFR part 381, or the SPE 
program (49 CFR 391.49), as appropriate.
    A Driver Trainer/Accident Investigator for a school district wrote 
in favor of a denial of the exemption request based on the need to 
strictly enforce regulations for safety on the roads.
    The FMCSA's first obligation is to keep our roadways safe. Our 
safety regulations have a single goal--to reduce the number of CMV 
crashes and fatalities on the Nation's highways. Under 49 U.S.C. 31315 
and 31136(e), FMCSA may grant an exemption from a regulation, however, 
only 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.''
    A medical examiner wrote that more information about the extent of 
the impairment of the right arm and why Mr. Parker does not wear 
prosthetics, and a skills performance examination are necessary to make 
a determination.
    The FMCSA has since received information from a psychiatrist 
regarding the impairment of Mr. Parker's right arm. In a letter dated 
November 8, 2002, the psychiatrist notes: ``that based on my 
examination today, Jerry has no impairment of the right upper 
extremity.''
    Advocates for Highway and Auto Safety (AHAS) expresses opposition 
to granting an exemption to Mr. Parker because: (1) There is no 
research on which to base a determination that an applicant with 
multiple impairments meets the statutory requirement for an exemption; 
(2) the FMCSA has no basis for granting an exemption for loss of limb 
to an individual who does not wear a prosthesis and (3) there is no 
basis for separately considering the two impairments.
    AHAS opposes the granting of exemptions to a single applicant from 
multiple medical and physical requirements in the FMCSRs because there 
is no foundation in fact or medical research on which a safety 
determination can be made. AHAS also states that the FMCSA has 
presented no analysis and has not cited any research to support the 
granting of exemptions in this circumstance. They point out that in 
denying the applicant's earlier request for an exemption in 1996, the 
FMCSA's predecessor agency stated that it lacked evidence to determine 
if an individual with these impairments could safely operate a CMV. 
AHAS stated that FMCSA has presented no evidence to contradict the 1996 
analysis.
    AHAS further states that the requirement for a driver to be capable 
of demonstrating precision prehension and power grasp prehension in 
each upper limb is based on medical information. They claim that, in 
line with this requirement, a driver with an upper limb amputation or 
impairment must wear a properly fitted and appropriate prosthesis to 
safely operate a CMV. AHAS then states that there is no record in this 
notice presenting evidence to refute the prosthesis requirement.

[[Page 8798]]

    AHAS avers that FMCSA has presented no information or evidence that 
addresses the potential interaction of the two impairments and its 
effect while driving a CMV. They claim that the lack of a prosthesis 
alone is a sufficient basis on which to deny the exemption request. The 
addition of poor vision is a factor that presents a more complex 
medical and safety condition.
    The agency has no data to refute the requirement that a prosthesis 
must be used to properly and safely operate a CMV. Therefore, in 
today's decision the FMCSA has deferred Mr. Parker's request for a SPE 
certificate until he obtains a properly fitted prosthesis and 
demonstrates full use of that device in accordance with the alternative 
physical qualification standards for the loss of limbs. If Mr. Parker 
fails to obtain a properly fitted prosthesis the FMCSA will not issue 
the SPE certificate. While the FMCSA has no specific data to address 
the level of safety that can be achieved when an applicant has two 
impairments, the agency does have data that identifies the requirements 
needed to safely operate a CMV in interstate commerce with the vision 
deficiency in question, and with a properly fitted prosthesis. The 
FMCSA has determined that it is reasonable to use this known data to 
grant the vision exemption and defer a decision on the physical 
qualification issue (loss of limb).
    Our response today is also guided by the Sixth Circuit's prior 
ruling in this matter. We believe that today's decision is consistent 
with the Court's remand and that the FMCSA is using a functional 
capacity test that is consistent with our prior findings that an 
individual's driving record is indicative of future performance and 
considers Mr. Parker's driving skills based upon his individual 
capabilities.
    The FMCSA believes that its SPE certification process provides the 
agency with a functional capacity type test to evaluate Mr. Parker's 
individual capabilities. The SPE certification process allows limb-
amputee and limb-impaired CMV drivers with good driving records to 
demonstrate, on an individual basis, their ability to operate safely 
the specific vehicle they intend to drive. This process is an 
assessment of the functional capabilities of the driver as they relate 
to the driver's ability to perform normal tasks associated with 
operating a CMV, and is based on the Amputee Driver Functional Matrix 
Chart (Krusen Study, 1977). The Matrix, formulated on the assumption 
that a prosthetic device is being worn by the amputee, identifies 
critical driving tasks associated with specific types of amputation or 
limb impairment and rates their difficulty given the specific handicap 
type. The SPE certification specialist reviews the functional 
capacities of the SPE applicant within the Matrix to focus on potential 
areas of difficulty, before administering an on-the-road test. Prior to 
the on-the-road evaluation, the process includes a review of the 
applicant's driving record for the last 3 years. Nonetheless, the FMCSA 
will continue to review this process and will examine ways to obtain 
funding to undertake a more extensive review of individuals with 
multiple impairments.

Conclusion

    After considering the comments to the docket and based upon its 
evaluation of the vision exemption application, the FMCSA exempts Mr. 
Parker from the vision requirement in 49 CFR 391.41(b)(10), subject to 
the following conditions: (1) That Mr. Parker 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 he is 
otherwise physically qualified under 49 CFR 391.41; (2) that Mr. Parker 
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 Mr. Parker provide a copy of the annual medical certification to 
his employer for retention in his driver's qualification file, or keep 
a copy in his driver's qualification file if he is self-employed. He 
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.
    Although the FMCSA has granted Mr. Parker a vision exemption, this 
action does not allow Mr. Parker to drive in interstate commerce 
because he has not met the physical qualification requirements for the 
loss of limbs. Action on Mr. Parker's SPE certification is deferred.
    In accordance with 49 U.S.C. 31315 and 31136(e), the exemption will 
be valid for 2 years unless revoked earlier by the FMCSA. The exemption 
will be revoked 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. If the exemption is still 
effective at the end of the 2-year period, Mr. Parker may apply to the 
FMCSA for a renewal under procedures in effect at that time.

    Issued on: February 23, 2003.
Pamela M. Pelcovits,
Acting Associate Administrator, Policy and Program Development.
[FR Doc. 03-4425 Filed 2-24-03; 8:45 am]
BILLING CODE 4910-EX-P