[Federal Register: August 8, 2001 (Volume 66, Number 153)]
[Notices]
[Page 41654-41656]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08au01-119]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2001-9561]
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 22 individuals from the vision requirement in 49 CFR 391.41(b)(10).
DATES: August 8, 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
Twenty-two individuals petitioned the 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: Roger D. Anderson, Joey E. Buice, Ronald D. Danberry, Paul W.
Dawson, Lois E. DeSouza, Richard L. Gandee, Steven A. Garrity, Chester
L. Gray, Waylon E. Hall, Jeffery M. Kimsey, Gerald L. Phelps, Doyle E.
Ramsey, Michael J. Risch, Tim M. Seavy, Kim L. Seibel, Edd J. Stabler,
Randy D. Stanley, Lee T. Taylor, James Melvin Tayman, Sr., Wesley E.
Turner, Edward W. Yeates, Jr., and John C. Young.
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 22 petitions on their merits
and made a determination to grant the exemptions to all of them. On
June 6, 2001, the agency published notice of its receipt of
applications from these 22 individuals, and requested comments from the
public (66 FR 30502). The comment period closed on July 6, 2001. One
comment was received, and its content was 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.)
[[Page 41655]]
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 22 applicants fall into this category. They are unable to meet
the vision standard in one eye for various reasons, including
amblyopia, retinal detachment, and loss of an eye due to trauma. In
most cases, their eye conditions were not recently developed. All but 5
of the applicants were either born with their vision impairments or
have had them since childhood. The 5 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 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 22 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 45
years. In the past 3 years, the 22 drivers had 4 convictions for
traffic violations among them. Three of these convictions were for
speeding. The other conviction was for stopping on the highway in a
CMV. 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 June 6, 2001, notice
(66 FR 30502). Since the docket comment 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, with one exception, by the information published at
66 FR 30502. After the FMCSA published its notice of receipt of
applications, the agency received additional information from its check
of these applicants' motor vehicle records that Mr. Westley E. Turner
had an accident in a CMV, but did not receive a citation. According to
the police report for the accident, the other driver was cited for
``Changed Lanes Within 100 Feet of Intersection.''
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 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 22 applicants receiving an exemption, we note that cumulatively the
applicants have had only two accidents and four traffic violations in
the last 3 years. The two accidents did not result in the issuance of
citations 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 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
[[Page 41656]]
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 22 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 this proceeding. The comment was
considered and is discussed below. The Louisiana Department of Public
Safety and Corrections wrote the FMCSA regarding the status of Mr.
Waylon E. Hall's CDL. Louisiana commented that on August 29, 2000, it
downgraded Mr. Hall's Class A CDL to a non-CDL license because he did
not meet the minimum physical qualification requirements in 49 CFR
391.41(b)(10). The Class A Louisiana CDL issued to Mr. Hall on January
9, 1997, was issued in error. However, Louisiana indicated that it will
reissue the CDL to Mr. Hall if the FMCSA grants him an exemption from
the Federal vision requirements.
Conclusion
After considering the comment to the docket and based upon its
evaluation of the 22 exemption applications in accordance with the
Rauenhorst decision, the FMCSA exempts Roger D. Anderson, Joey E.
Buice, Ronald D. Danberry, Paul W. Dawson, Lois E. DeSouza, Richard L.
Gandee, Steven A. Garrity, Chester L. Gray, Waylon E. Hall, Jeffery M.
Kimsey, Gerald L. Phelps, Doyle E. Ramsey, Michael J. Risch, Tim M.
Seavy, Kim L. Seibel, Edd J. Stabler, Randy D. Stanley, Lee T. Taylor,
James Melvin Tayman, Sr., Wesley E. Turner, Edward W. Yeates, Jr., and
John C. Young 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: August 1, 2001.
Julie Anna Cirillo,
Acting Deputy Administrator.
[FR Doc. 01-19897 Filed 8-7-01; 8:45 am]
BILLING CODE 4910-EX-P
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