[Federal Register Volume 63, Number 6 (Friday, January 9, 1998)]
[Notices]
[Pages 1524-1527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-568]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-97-2625]
Qualification of Drivers; Waiver Application; Vision
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of final disposition.
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SUMMARY: The FHWA announces its decision to grant the petition of David
R. Rauenhorst for a waiver of the vision requirement contained in 49
CFR 391.41(b)(10).
EFFECTIVE DATE: This decision is effective on Jnauary 9, 1998.
FOR FURTHER INFORMATION CONTACT: Ms. Sandra Zywokarte, Office of Motor
Carrier Research and Standards, (202) 366-1790, or Ms. Judy Rutledge,
Office of 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: David R. Rauenhorst petitioned the FHWA for
a waiver of the vision requirement in 49 CFR 391.41(b)(10), which
applies to drivers of commercial motor vehicles in interstate commerce.
The FHWA evaluated Mr. Rauenhorst's application on its merits, as
required by the decision in Rauenhorst v. United States Department of
Transportation, Federal Highway Administration, 95 F.3d 715 (8th Cir.
1996), and made a preliminary determination that the waiver should be
granted. On July 2, 1997, the agency published notice of its
preliminary determination and requested comments from the public. (62
FR 35881). The
[[Page 1525]]
comment period closed on August 1, 1997. Four comments were received,
and their contents were carefully considered by the FHWA in reaching
its final decision to grant Mr. Rauenhorst's petition for a waiver of
the vision requirement in 49 CFR 391.41(b)(10).
Mr. Rauenhorst's Vision and Driving Experience
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.
Mr. Rauenhorst is unable to meet the vision standard because a non-
driving accident in 1976 caused him to sustain a retinal detachment in
his right eye. As a result, vision in his right eye is limited to
finger counting, and the capability of seeing movement, colors, and
gross objects. Medical reports for 1995, 1996, and 1997 indicate that
Mr. Rauenhorst's eye condition is non-degenerative and that the vision
in the right eye is stable. Moreover, Mr. Rauenhorst has had 20/20
corrected vision in his left eye for the last three years, and, in his
doctor's opinion, can safely operate any motor vehicle.
Whether Mr. Rauenhorst can safely operate a commercial motor
vehicle is the critical question in this proceeding. Under 49 U.S.C.
31136(e), the FHWA may waive application of the vision standard to Mr.
Rauenhorst only if the agency determines that the waiver is consistent
with the public interest and the safe operation of commercial motor
vehicles. In making that determination, the FHWA has considered not
only the medical evaluation of Mr. Rauenhorst's vision but also his
driving record and experience. Mr. Rauenhorst has been self-employed as
a commercial truck driver since 1974. During this time, he has driven
tractor-trailer combinations more than 2 million miles to transport
sugar beets and bulk commodities for seed companies. In the last ten
years, with his limited vision, he has driven 1 million miles without
an accident. Most significantly, his driving record for the past 3
years reflects no traffic violations as well as no accidents. This
driving history demonstrates that Mr. Rauenhorst's vision deficiency
has not compromised his ability to safely operate a commercial vehicle
and that he has adapted his driving techniques to accommodate the
limited vision in his right eye.
Mr. Rauenhorst's ability to operate a commercial vehicle is also
evidenced by his possession of a valid commercial driver's license
(CDL). Before issuing a CDL, States subject the driver to knowledge and
performance tests designed to evaluate the driver's qualifications to
drive the vehicle to be operated. Mr. Rauenhorst satisfied the testing
standards for the State of Minnesota and holds a current CDL that was
issued on April 10, 1995 and is valid until February 22, 1999. The
current license was preceded by another Minnesota CDL which was
effective from January 31, 1991, until February 22, 1995. By meeting
his State's licensing requirements, Mr. Rauenhorst demonstrated his
ability to operate a commercial vehicle with his limited vision to the
satisfaction of the State.
Basis for Waiver Determination
To waive application of 49 CFR 391.41(b)(10) to Mr. Rauenhorst, the
FHWA must find the waiver to be consistent with the public interest and
the safe operation of commercial motor vehicles. (49 U.S.C. 31136(e)).
We find that granting the waiver is consistent with the public
interest. Mr. Rauenhorst has earned his living as a commercial truck
driver since 1974, notwithstanding a vision deficiency which
disqualifies him from operating a vehicle in interstate commerce. This
waiver will allow him to broaden his employment opportunities by
enabling him to operate commercial vehicles in interstate commerce. As
a result, the economic viability of his business may be enhanced. In
that regard, the waiver will allow the employment of a person with a
disability, which is consistent with the public policies expressed in
the Rehabilitation Act of 1973 and the Americans with Disabilities Act
of 1992.
The waiver is also consistent with the safe operation of commercial
motor vehicles. In reaching this determination, the FHWA has relied
upon research studies designed to correlate past and future driving
performance. Copies of the several studies relied upon here have been
added to the docket.
The first major research in this area 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 California study used three consecutive years
of data, comparing the experience of drivers in the first two years
with the experience of those same drivers the final year.
Results of these studies support the principle that the best
predictor of future performance by a driver is his past record of
accidents and traffic violations. Mr. Rauenhorst's driving record
reflects that he has had no accidents or traffic violations in the past
three years. He established this record while driving with the limited
vision caused by the retinal detachment in 1976, a fact which
demonstrates that he has adapted his driving skills to accommodate his
eye condition. Because Mr. Rauenhorst's driving history is the best
predictor of future performance, absent any information indicating any
reduction in visual capacity or other factor essential to the driving
task, the FHWA has determined that his ability to drive safely can be
projected into the future and that waiving application of the vision
standard is consistent with the safe operation of commercial motor
vehicles.
In granting this waiver, the FHWA is mindful that vision changes. A
deterioration of Mr. Rauenhorst's vision in the future could affect his
ability to operate a commercial vehicle as safely as he has in the
past. For that reason, the FHWA will impose conditions on the waiver to
ensure that Mr. Rauenhorst's vision is monitored annually. These
conditions are consistent with the grandfathering provisions applied to
drivers who participated in the vision waiver study program. They are
found at 49 CFR 391.64(b) and include the following: (1) That Mr.
Rauenhorst be physically examined every year (a) by an ophthalmologist
or optometrist who attests to the fact that his vision continues to
measure at least 20/40
[[Page 1526]]
(Snellen) in the better eye; and (b) by a medical examiner who attests
to the fact that he is otherwise physically qualified under 49 CFR
391.41; (2) that he provide a copy of the ophthalmologist or
optometrist report to the medical examiner at the time of the annual
medical examination; and (3) that he keep a copy of the annual medical
certification in his driver qualification file as long as he is self-
employed or provide a copy to his employer for retention in the
driver's qualification file, and retain a copy of the certification on
his person while driving for presentation to a duly authorized Federal,
State, or local enforcement official.
Discussion of Comments
The FHWA received four (4) comments to the docket in response to
its July 2, 1997, notice of intent to grant Mr. Rauenhorst's
application for a waiver. Each comment has been considered by the FHWA
in reaching its final determination and is discussed below.
The International Brotherhood of Teamsters (IBT) supported the
FHWA's determination to grant the waiver. Although favoring a
conservative approach to waiving safety standards, the IBT agreed that
Mr. Rauenhorst's stable medical condition, driving history, and
agreement to periodic monitoring support a finding that the waiver is
consistent with the public interest and the safe operation of
commercial motor vehicles.
The comment filed by the Insurance Institute for Highway Safety
(IIHS) did not address Mr. Rauenhorst's waiver but instead urged the
FHWA, in this proceeding and two others in which its comment was filed,
to thoroughly verify all reports of crash rates made by drivers or
motor carriers. Noting that self-reporting has, in the past, resulted
in under reporting, the IIHS observed that drivers seeking waivers from
medical qualifications have an economic incentive to understate their
crashes and overstate their annual mileage. Those concerns are not a
factor in this proceeding, however, because the FHWA did not rely on
Mr. Rauenhorst's report of his accidents and traffic violations.
Instead the agency required, and relied on, a certified copy of Mr.
Rauenhorst's driving record from the State of Minnesota to prove that
he has had no accidents or traffic violations in the past three years.
The American Trucking Associations (ATA) opposes granting waivers
to drivers who cannot meet the existing medical standards. It believes
that the current standards ensure that drivers are in sufficiently good
health to drive safely and that the vision standard is particularly
important because driving responses are based primarily on what is
seen. If the waiver is granted, however, the ATA agrees that Mr.
Rauenhorst should be subject to the same annual examination
requirements that were imposed on the ``grandfathered'' drivers in FHWA
Docket MC-96-2. Additionally, it believes that Mr. Rauenhorst should be
required to report his involvement in any DOT-recordable accident
directly to the FHWA and be prohibited from driving until he has
undergone a medical and vision examination following the accident.
Except for his vision, Mr. Rauenhorst's health is not at issue
because he meets all other medical qualification standards in 49 CFR
391.31(b). Moreover, the clean driving record he has established over
the last three years with his limited vision reflects Mr. Rauenhorst's
ability to make safe and appropriate driving responses to visual
stimuli. Therefore, applying the Court's decision in Rauenhorst v.
United States Department of Transportation, Federal Highway
Administration, the FHWA is satisfied that Mr. Rauenhorst qualifies
under 49 U.S.C. 31136 for a waiver of the vision requirements, subject
to the conditions enumerated in this decision. One of those conditions
requires him to undergo annual vision examinations which will disclose
any deterioration in his visual capacity and will affect his
qualifications for the waiver. In view of his driving record and stable
vision over the last three years, there is no reason to believe that
his vision will play any greater role in a potential accident than the
vision of a driver who meets the vision standard. For that reason, the
FHWA does not agree that special conditions regarding accident
reporting and driving suspension are warranted.
In the fourth comment to the Docket, the Advocates for Highway and
Auto Safety (AHAS) questions whether the administrative record in this
case adequately addresses issues that are relevant to the merits of Mr.
Rauenhorst's waiver application. Four particular issues are raised in
its comment.
First, the AHAS does not think the record adequately reflects the
magnitude of the retinal detachment, describes the extent to which the
detachment has adversely affected Mr. Rauenhorst's vision, or provides
any analysis of other aspects of his vision such as depth perception,
peripheral vision, and visual acuity in the injured eye. But Mr.
Rauenhorst's medical reports for 1995, 1996, and 1997 are part of the
record in this case and indicate that he can count fingers, and see
movement, colors, and gross objects with his right eye. They also
reflect his doctor's opinion that the eye condition is stable, an
opinion which necessarily considers the severity of the retinal
detachment. Furthermore, the reports confirm that Mr. Rauenhorst has
20/20 corrected vision in his left eye and, therefore, provide an
overview of his vision which the FHWA believes adequate to support its
action in this case.
AHAS next points out that the record contains nothing to support
the agency's statement that Mr. Rauenhorst has adapted his driving
skills to accommodate his limited vision. We think the statement is
supported by Mr. Rauenhorst's driving record. That he has driven the
last three years without having an accident or being convicted of a
traffic violation demonstrates that he has developed driving techniques
to compensate for his vision impairment.
As its third issue, the AHAS objects that the record does not
explain how Mr. Rauenhorst obtained a CDL in view of his legally
disqualifying vision deficiency. Moreover, it wonders why the waiver is
necessary if he holds a valid CDL. In raising this issue, the AHAS has
misconstrued the relationship between a CDL and the driver
qualification standards in 49 CFR 391.41. To operate a commercial motor
vehicle in interstate commerce, a driver must have both a CDL and a
medical card. The medical card is issued by a medical examiner who
certifies that the driver meets the physical qualification standards in
49 CFR 391.41(b). Mr. Rauenhorst cannot meet those physical standards
due to his vision, and, therefore, does not possess the medical card
required to operate in interstate commerce. On the other hand, the CDL
is issued by the driver's State and authorizes a person to drive a
particular kind of commercial vehicle. Although States have physical
qualification requirements compatible with those in 49 CFR 391.41(b), a
State may waive those requirements for intrastate operations under
certain conditions. Thus, it is possible for a driver to obtain a CDL
but not be physically qualified to drive in interstate commerce. Mr.
Rauenhorst falls into this category, and consequently his driving has
been limited to intrastate commerce even though he holds a valid CDL.
With a waiver of the vision requirement in 49 CFR 391.41(b)(10), he
will be able to obtain a medical card and operate in interstate
commerce.
[[Page 1527]]
Finally, the AHAS notes that the record contains no assessment of
the character of mileage driven by Mr. Rauenhorst. It asserts that
intrastate operations involve different driving conditions than
interstate operations so Mr. Rauenhorst's mileage must be categorized
in order to properly evaluate his experience and driving record. Such
an approach would create a Catch-22 for persons seeking a waiver.
Drivers like Mr. Rauenhorst do not physically qualify to drive in
interstate commerce. If interstate driving experience is required
before obtaining a waiver, a physically challenged driver would never
qualify for a waiver, or, alternatively, would be compelled to drive
illegally in interstate commerce to acquire the experience necessary to
be evaluated for a waiver. The FHWA cannot sanction a standard that
yields such a result. Moreover, intrastate driving amply tests the
skills and capability of a driver.
Intrastate driving could very well expose the driver to more
congested urban areas, narrower rural roads, a greater variety of
vehicles, more pedestrians, and more vehicle traffic than exists on
interstate highways. Intrastate driving also involves substantial
driving on highways on the interstate system and on other roads built
to interstate standards. These conditions tax visual capacity and
driver response just as intensely as interstate driving conditions. For
this reason, we believe Mr. Rauenhorst's intrastate driving experience
provides an adequate basis for evaluating his ability to safely operate
a CMV in interstate commerce.
Conclusion
After considering the comments to the Docket and based upon its
evaluation of Mr. Rauenhorst's waiver application in accordance with
Rauenhorst v. United States Department of Transportation, Federal
Highway Administration, the FHWA waives application of the vision
requirement in 49 CFR 391.41(b)(10) as it applies to Mr. Rauenhorst
subject to the following conditions: (1) That Mr. Rauenhorst be
physically examined every year (a) by an ophthalmologist or optometrist
who attests to the fact that his vision continues to measure at least
20/40 (Snellen) in the better eye; and (b) by a medical examiner who
attests to the fact that he is otherwise physically qualified under 49
CFR 391.41; (2) that he provide a copy of the ophthalmologist or
optometrist report to the medical examiner at the time of the annual
medical examination; and (3) that he keep a copy of the annual medical
certification in his driver qualification file as long as he is self-
employed or provide a copy to his employer for retention in the
driver's qualification file, and retain a copy of the certification on
his person while driving for presentation to a duly authorized Federal,
State, or local enforcement official.
Authority: 49 U.S.C. 31136; 23 U.S.C. 315; 49 CFR 1.48.
Issued on: December 31, 1997.
Kenneth R. Wykle,
Federal Highway Administrator.
[FR Doc. 98-568 Filed 1-8-98; 8:45 am]
BILLING CODE 4910-22-P
