[Federal Register Volume 65, Number 1 (Monday, January 3, 2000)]
[Notices]
[Pages 159-162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-34043]
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DEPARTMENT OF TRANSPORTATION
Office of Motor Carrier Safety
[OMCS Docket No. 99-6156 (formerly FHWA Docket No. 99-6156)]
Qualification of Drivers; Exemption Applications; Vision
AGENCY: Office of Motor Carrier Safety (OMCS), DOT.
ACTION: Notice of final disposition.
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SUMMARY: The OMCS announces its decision to exempt 40 individuals from
the vision requirement in 49 CFR 391.41(b)(10).
DATES: January 3, 2000.
FOR FURTHER INFORMATION CONTACT: For information about the vision
exemptions in this notice, Ms. Sandra Zywokarte, Office of Motor
Carrier Research and Standards, (202) 366-2987; for information about
legal issues related to this notice, Ms. Judith Rutledge, Office of the
Chief Counsel, (202) 366-0834, Federal Highway Administration,
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 Office of 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
The Secretary has rescinded the authority previously delegated to
the Federal Highway Administration to perform motor carrier functions
and operations. This authority has been redelegated to the Director,
Office of Motor Carrier Safety (OMCS), a new office within the
Department of Transportation [64 FR 56270, October 19, 1999]. This
explains the docket transfer. The new OMCS assumes the motor carrier
functions previously performed by the FHWA's Office of Motor Carrier
and Highway Safety (OMCHS). Ongoing rulemaking, enforcement, and other
activities of the OMCHS, initiated while part of the FHWA, will be
continued by the OMCS. The redelegation will cause no changes in the
motor carrier functions and operations of the offices or resource
centers.
Forty 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 OMCS is
now responsible for processing the vision exemption applications of the
40 drivers. They are Herman Bailey, Jr., Mark A. Baisden, Brad T.
Braegger, Kenneth Eugene Bross, Erick H. Cotton, Fletcher E. Creel,
Richard James Cummings, Daniel R. Franks, William L. Frigic, Curtis
Nelson Fulbright, Victor Bradley Hawks, Vincent I. Johnson, Myles E.
Lane, Sr., Dennis J. Lessard, Jon G. Lima, Richard L. Loeffelholz,
Herman Carl Mash, Joseph M. Porter, Richard Rankin, Robert G. Rasicot,
A.W. Schollett, Melvin B. Shumaker, Clark H. Sullivan, Wayland O.
Timberlake, Norman R.Wilson, Larry M. Wink, Jeffrey G. Wuensch, Jon H.
Wurtele, Walter M. Yohn, Jr., Steven H. Heidorn, James Donald Simon,
William A. Bixler, Woodrow E. Bohley, George L. Silvia, Martin Postma,
Steven L. Valley, Phillip P. Smith, Robert W. Nicks, Frank T. Miller,
and Roger Allen Dennison. Under 49 U.S.C. 31315 and 31136(e), the OMCS
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 OMCS evaluated the petitions on their
merits and made a preliminary determination that the waivers should be
granted. On July 26, 1999, the agency published notice of its
preliminary determination and requested comments from the public (64 FR
54948). The comment period closed on November 8, 1999. Two comments
were received, and their contents were carefully considered by the OMCS
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
[[Page 160]]
leaving the visual acuity standard unchanged. (See Frank C. Berson,
Mark C. Kuperwaser, Lloyd Paul Aiello, and James W. Rosenberg, ``Visual
Requirements and Commercial Drivers,'' October 16, 1998, filed in the
docket). The panel's conclusion supports the OMCS'' (and previously the
FHWA's) view that the present standard is reasonable and necessary as a
general standard to ensure highway safety. The OMCS 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 40 applicants fall into this category. They are unable to meet
the vision standard in one eye for various reasons, including
amblyopia, retinal detachment, macular defect, and loss of an eye due
to trauma. In most cases, their eye conditions were not recently
developed. All but 14 applicants were either born with their vision
impairments or have had them since childhood. The 14 individuals who
sustained their vision conditions as adults have had them for periods
ranging from 3 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, 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 40 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 53 years.
In the past 3 years, the 40 drivers had a total of four moving
violations among them. Two drivers were involved in accidents in their
CMVs, but none of the CMV drivers received a citation.
The qualifications, experience, and medical condition of each
applicant were stated and discussed in detail in an October 8, 1999,
notice (64 FR 54948). 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 54948.
Basis for Exemption Determination
Under 49 U.S.C. 31315 and 31136(e), the OMCS 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 OMCS
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 40 applicants, we note that cumulatively the applicants have had
only two accidents and four moving violations in the last 3 years. None
of the violations involved a serious traffic violation as defined in 49
CFR 383.5, and neither of the accidents resulted in a citation. 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 OMCS 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
[[Page 161]]
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 OMCS 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 OMCS will impose
requirements on the 40 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 OMCS received two comments in this proceeding. Each comment was
considered and is discussed below.
The Licensing Operations Division of the California Department of
Motor Vehicles commented, in the case of applicant 6 (Mr. Fletcher E.
Creel), that it does not oppose the granting of an exemption from the
Federal vision requirements to Mr. Creel; however, the Department of
Motor Vehicles will continue to impose restrictions from transporting
passengers or hazardous materials on his CDL. Because the OMCS has
determined that exempting Mr. Creel from the vision standard in 49 CFR
391.41(b)(10) is likely to achieve a level of safety equal to that
without the exemption, the agency does not believe it is necessary to
impose this further restriction upon Mr. Creel or any of the
applicants, for that matter. The OMCS sets the testing and licensing
standards for commercial drivers; however, it is the State that
implements these standards and issues the CDL. Therefore, the State,
California in this case, has jurisdiction to set licensing restrictions
for commercial operations.
In another comment, the Advocates for Highway and Auto Safety
(AHAS) expressed continued opposition to the FHWA's policy to grant
exemptions from the Federal Motor Carrier Safety Regulations (FMCSRs)
including the driver qualification standards. Specifically, the AHAS:
(1) Asks the agency to clarify the consistency of the exemption
application information provided at 64 FR 54948, (2) objects to the
agency's reliance on conclusions drawn from the vision waiver program,
(3) raises procedural objections to this proceeding, (4) claims the
agency has misinterpreted statutory language on the granting of
exemptions (49 U.S.C. 31315 and 31136(e)), and finally, (5) suggests
that a recent Supreme Court decision affects the legal validity of
vision exemptions.
On the first issue regarding clarification of exemption application
information, the AHAS points to what it sees as ``inconsistencies and
differences in the types of information'' provided in individual
applications. The AHAS questions why the FHWA omitted information on
mileage driven for 6 of the 40 applicants. This difference in the
presentation of information simply reflects the OMCS' case-by-case
assessments of individual applications. Total mileage driven was
provided as an indicator of overall CMV experience. The omission of
total mileage information for 6 of the 40 applicants is not significant
since all 40 applicants have 3 years of experience operating a CMV with
their vision deficiency in a period recent enough for the OMCS to
verify their safety records.
The AHAS identifies other apparent inconsistencies, such as the use
of different terminology describing the driving records of applicants.
As previously stated at 64 FR 66962, the use of different terminology
simply reflects the agency's case-by-case assessments of individual
applications as to whether there were any accidents or traffic
violations in a CMV in the past 3 years. Regardless of how the agency
states this information--that is, in a CMV, in any vehicle or no
accidents or violations, it indicates that the applicant has not had an
accident or traffic violation in a CMV in the last 3 years. The use of
different terminology is not, as the AHAS continues to suggest, an
attempt by the OMCS to manipulate information in such a way as to ``put
the best possible appearance on each petition for exemption.''
In another comment, the AHAS again suggests that the agency is
``sanitizing'' the information in the driving record to justify
granting vision exemptions. As previously stated at 64 FR 66962,
specific information provided on accidents and traffic violations of
the applicants is a presentation of the facts as we know them and not
any attempt to downplay or explain away accidents and citations as the
AHAS suggests.
The AHAS also comments that ``the opinions of the ophthalmologists
and especially optometrists, are not persuasive and should not be
relied on by the agency.'' The opinions of the vision specialists on
whether a driver has sufficient vision to perform the tasks associated
with operating a CMV, are made only after a thorough vision examination
including formal field of vision testing to identify any medical
condition which may compromise the visual field such as glaucoma,
stroke or brain tumor, and not just based on a Snellen test. The OMCS
believes it can rely on medical opinions regarding whether a driver's
visual capacity is sufficient to enable safe operations. The medical
information is combined with information on experience and driving
records in the agency's overall determination whether exempting
applicants from the vision standard is likely to achieve a level of
safety equal to that existing without the exemption.
The other issues raised by the AHAS which object to the agency's
reliance on conclusions drawn from the vision waiver program, raise
procedural objections to this proceeding, claim the agency has
misinterpreted statutory language on the granting of exemptions (49
U.S.C. 31315 and 31136(e)), and finally, suggest that a recent Supreme
Court decision affects the legal validity of vision exemptions, were
addressed at length in 64 FR 51568 (September 23, 1999), 64 FR 66962
(November 30, 1999) and 64 FR 69586 (December 13, 1999). We see no
benefit in addressing these points again and refer interested parties
to those earlier discussions for reasons why the points are rejected.
Notwithstanding the OMCS' ongoing review of the vision standard, as
evidenced by the medical panel's report dated October 16, 1998, and
filed in this docket, the OMCS must comply with Rauenhorst v. United
States Department of Transportation, Federal Highway Administration, 95
F.3d 715 (8th Cir. 1996), and grant individual exemptions
[[Page 162]]
under standards that are consistent with public safety. Meeting those
standards, the 40 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 40 exemption applications in accordance with
Rauenhorst v. United States Department of Transportation, Federal
Highway Administration, supra, the OMCS exempts Herman Bailey, Jr.,
Mark A. Baisden, Brad T. Braegger, Kenneth Eugene Bross, Erick H.
Cotton, Fletcher E. Creel, Richard James Cummings, Daniel R. Franks,
William L. Frigic, Curtis Nelson Fulbright, Victor Bradley Hawks,
Vincent I. Johnson, Myles E. Lane, Sr., Dennis J. Lessard, Jon G. Lima,
Richard L. Loeffelholz, Herman Carl Mash, Joseph M. Porter, Richard
Rankin, Robert G. Rasicot, A.W. Schollett, Melvin B. Shumaker, Clark H.
Sullivan, Wayland O. Timberlake, Norman R.Wilson, Larry M. Wink,
Jeffrey G. Wuensch, Jon H. Wurtele, Walter M. Yohn, Jr., Steven H.
Heidorn, James Donald Simon, William A. Bixler, Woodrow E. Bohley,
George L. Silvia, Martin Postma, Steven L. Valley, Phillip P. Smith,
Robert W. Nicks, Frank T. Miller, and Roger Allen Dennison 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 OMCS. 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 OMCS for a renewal under procedures in effect at that time.
Authority: 49 U.S.C. 322, 31315 and 31136; 49 CFR 1.73.
Julie Anna Cirillo,
Acting Director, Office of Motor Carrier Safety.
[FR Doc. 99-34043 Filed 12-30-99; 8:45 am]
BILLING CODE 4910-22-P
