[Federal Register Volume 65, Number 73 (Friday, April 14, 2000)]
[Notices]
[Pages 20251-20254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-9255]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[FMCSA Docket No. 99-6480 (Formerly OMCS Docket No. 99-6480)]
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 34 individuals from
the vision requirement in 49 CFR 391.41(b)(10).
[[Page 20252]]
DATES: April 14, 2000.
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, Ms. Judith Rutledge, Office of the
Chief Counsel, (202) 366-2519, 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
Internet users may access all comments received by the U.S. DOT
Dockets, Room PL-401, by using the universal resource locator (URL):
http://dms.dot.gov. It is available 24 hours each day, 365 days each
year. Please follow the instructions online for more information and
help.
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Government Printing
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet
users may reach the Federal Register's home page at: http://www.nara.gov/fedreg and the Government Printing Office's web page at:
http://www.access.gpo.gov/nara.
Background
On January 1, 2000, the FMCSA was created to assume
responsibilities relevant to motor carrier safety (See The Motor
Carrier Safety Improvement Act of 1999, Public Law 106-159, 113 Stat.
1748 (December 9, 1999)). This explains the docket transfer.
Thirty-four individuals petitioned the FHWA 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. The FMCSA is
now responsible for processing the vision exemption applications of the
34 drivers. They are Rodney D. Blaschke, Thomas B. Blish, Ronnie
Freamon Bowman, James C. Bryce, Thomas L. Corey, James D. Davis, Glenn
Gee, Lloyd E. Hall, Byron Dale Hardie, Robert N. Heaton, Edward E.
Hooker, James M. Irwin, Laurent G. Jacques, Alfred G. Jeffus, Oskia
Johnson, Michael W. Jones, Don R. Kennedy, Dennis E. Krone, James F.
Laverdure, Christopher P. Lefler, David R. Linzy, Richard Joseph
Madler, Earl E. Martin, David P. McCabe, Richard John McKenzie, Jr.,
Kenneth R. Piechnik, Tommy L. Ray, Jr., William A. Reyes, Carl A. Sigg,
Sammy D. Steinsultz, Edward J. Sullivan, John C. Vantaggi, Winston
Eugene White, and Turgut T. Yilmaz. 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 evaluated the petitions on
their merits and made a preliminary determination that the waivers
should be granted. On December 6, 1999, the agency published notice of
its preliminary determination and requested comments from the public
(64 FR 68195). The comment period closed on January 5, 2000. 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 in 49 CFR 391.41(b)(10) 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.
Since 1992, the 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). 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 34 applicants fall into this category. They are unable to meet
the vision standard in one eye for various reasons, including
amblyopia, retinal detachment, macular scar, and loss of an eye due to
trauma. In most cases, their eye conditions were not recently
developed. Over half of the applicants were either born with their
vision impairments or have had them since childhood. The other
individuals who sustained their vision conditions as adults have had
them for periods ranging from 5 to 43 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, can perform all the
tasks necessary to operate a CMV. The doctors' opinions are supported
by the applicants' possession of a valid commercial driver's license
(CDL). Before issuing a CDL, States subject drivers to knowledge and
performance tests designed to evaluate their qualifications to operate
the 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, these 34 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 5 to 49 years.
In the past 3 years, the 34 drivers had nine convictions for traffic
violations among them. Two drivers were involved in accidents in their
CMVs, but there were no injuries and neither of the CMV drivers
received a citation. The drivers were convicted of seven moving traffic
violations, six of them were for speeding and one was for ``Traffic
Control Device.''
The qualifications, experience, and medical condition of each
applicant were stated and discussed in detail in a December 6, 1999,
notice (64 FR 68195). 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, however, is supported by the information
published at 64 FR 68195.
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
[[Page 20253]]
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. 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.
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). 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 to 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 34 applicants, we note that cumulatively the applicants have had
only two accidents and seven traffic violation in the last 3 years.
Neither of the accidents resulted in bodily injury or 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 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 exist 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 5 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 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 34 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 its driver
qualification file, or keep a copy in his/her driver 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.
Discussion of Comments
The FMCSA received two comments in this proceeding. Each comment
was considered and is discussed below.
A letter was received from Mr. Oskia D. Johnson, one of the
applicants under consideration. In his letter, Mr. Johnson asked that
his application for a vision exemption be considered, citing his
driving safety record.
In another comment, 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) Asks that the Office of Motor Carrier Research take no new action
on exemption requests until an Administrator has been appointed and
confirmed for the newly established Federal Motor Carrier Safety
Administration; (2) asks the agency to clarify the consistency of the
exemption application information, (3) objects to the agency's reliance
on conclusions drawn from the vision waiver program, (4) suggests that
the criteria used by the FHWA (now the FMCSA) for considering
exemptions is flawed, (5) raises procedural objections to this
proceeding, (6) claims the agency has misinterpreted statutory language
on the granting of exemptions (49 U.S.C. 31315 and 31136(e)), and
finally, (7) suggests that a recent Supreme Court
[[Page 20254]]
decision affects the legal validity of vision exemptions.
On the first issue regarding the appointment and confirmation of an
Administrator for the Federal Motor Carrier Safety Administration, an
Acting Deputy Administrator has been appointed and delegated functions
required for the operation of the new agency. The other 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), and 65 FR 159 (January 3, 2000). We see no benefit in addressing
these points again and refer interested parties to those earlier
discussions for reasons why the points were rejected.
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 34 veteran drivers 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 34 waiver applications in accordance with Rauenhorst
v. United States Department of Transportation, Federal Highway
Administration, supra, the FMCSA exempts Rodney D. Blaschke, Thomas B.
Blish, Ronnie Freamon Bowman, James C. Bryce, Thomas L. Corey, James D.
Davis, Glenn Gee, Lloyd E. Hall, Byron Dale Hardie, Robert N. Heaton,
Edward E. Hooker, James M. Irwin, Laurent G. Jacques, Alfred G. Jeffus,
Oskia Johnson, Michael W. Jones, Don R. Kennedy, Dennis E. Krone, James
F. Laverdure, Christopher P. Lefler, David R. Linzy, Richard Joseph
Madler, Earl E. Martin, David P. McCabe, Richard John McKenzie, Jr.,
Kenneth R. Piechnik, Tommy L. Ray, Jr., William A. Reyes, Carl A. Sigg,
Sammy D. Steinsultz, Edward J. Sullivan, John C. Vantaggi, Winston
Eugene White, and Turgut T. Yilmaz 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 its driver qualification file, or keep a
copy in his/her driver 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: April 6, 2000.
Julie Anna Cirillo,
Acting Deputy Administrator, Federal Motor Carrier Safety
Administration.
[FR Doc. 00-9255 Filed 4-13-00; 8:45 am]
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