[Federal Register Volume 63, Number 196 (Friday, October 9, 1998)]
[Notices]
[Pages 54519-54522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27229]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-98-3637]
Qualification of Drivers; Exemption Applications; Vision
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of final disposition.
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SUMMARY: The FHWA announces its decision to exempt 12 individuals from
the vision requirement in 49 CFR 391.41(b)(10).
DATES: This decision is effective on November 9, 1998.
FOR FURTHER INFORMATION CONTACT: Mr. Michael Thomas, Office of Motor
Carrier Research and Standards, (202) 366-8786, or 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:
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Background
Twelve individuals 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 (CMVs) in interstate commerce. They are Larry
A. Dahleen, Earl D. Edland, Dale Hellmann, Dan E. Hillier, Robert J.
Johnson, Bruce T. Loughary, Michael L. Manning, Leo L. McMurray, Gerald
Rietmann, Jimmy E. Settle, Robert A. Wagner, and Hubert Whittenburg.
The FHWA evaluated the petitions on their 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 waivers should be granted. On June
3, 1998, the agency published notice of its preliminary determination
and requested comments from the public. (63 FR 30285). The comment
period closed on July 6, 1998. Three comments were received, and their
contents have been carefully considered by the FHWA in reaching its
final decision to grant the petitions.
When its notice of preliminary determination was published on June
3, 1998, the FHWA was authorized by 49 U.S.C. 31136(e) to waive
application of the vision standard if the agency determined the waiver
was consistent with the public interest and the safe operation of CMVs.
Because the statute did not limit the effective period of a waiver, the
agency had discretion to issue waivers for any period warranted by the
circumstances of a request.
On June 9, 1998, the FHWA's waiver authority changed with enactment
of the Transportation Equity Act for the 21st Century (TEA-21), Public
Law 105-178, 112 Stat.107. Section 4007 of TEA-21 amended the waiver
provisions of 49 U.S.C. 31315 and 31136(e) to change the standard for
evaluating waiver requests, to distinguish between a waiver and an
exemption, and to establish term limits for both. Under revised section
31136(e), the FHWA may grant a waiver for a period of up to 3 months or
an exemption for a renewable 2-year period. The 12 applications in this
proceeding fall within the scope of an exemption request under the
revised statute.
The amendments to 49 U.S.C. 31136(e) also changed the criteria for
exempting a person from application of a regulation. Previously an
exemption was appropriate if it was consistent with the public interest
and the safe operation of CMVs. Now the FHWA may grant an exemption 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 new standard provides the FHWA greater
discretion to deal with exemptions than the previous standard because
it allows an exemption to be based on a reasonable expectation of
equivalent safety, rather than requiring an absolute determination that
safety will not be diminished. (See H.R. Conf. Rep. No. 105-550, at 489
(1998)).
Although the 12 petitions in this proceeding were filed before
enactment of TEA-21, the FHWA is required to apply the law in effect at
the time of its decision unless (1) its application will result in a
manifest injustice or (2) the statute or legislative history directs
otherwise. Bradley v. School Board of the City of Richmond, 416 U.S.
696 (1974). As the FHWA preliminarily determined the 12 applicants in
this proceeding qualified for waivers under the previous stricter
standard, they are not prejudiced by our application of the new, more
flexible standard at this stage of the proceeding. As nothing in the
statute or its history directs otherwise, we have applied the new
exemption standard in 49 U.S.C. 31136(e) in our final evaluation of
their petitions and determined that exempting these 12 applicants from
the vision requirement in 49 CFR 391.41(b)(10) is likely to achieve a
level of safety equal to, or greater than, the level that would be
achieved without the exemption.
Although applying TEA-21's new exemption standard does not
adversely affect the applicants, subjecting their applications to the
new procedural requirements would adversely affect them. Section 4007
requires the Secretary of Transportation to promulgate regulations
specifying the procedures by which a person may request an exemption.
The statute lists four items of information an applicant must submit
with an exemption petition and gives the Secretary 180 days to get the
new procedural regulations in place.
[[Page 54520]]
Although the FHWA intends to meet that deadline, it would be manifestly
unjust to the 12 applicants to delay our decision until the new
procedural regulations are in place, and then at that time, require
them to submit conforming information to support their exemption
request. To avoid this delay and injustice, we will not apply the new
procedural requirements of Section 4007 to exemption petitions filed
before its effective date, June 9, 1998.
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.
The FHWA recognizes, however, 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 12 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 an accident.
Their eye conditions were not recently developed. Six (6) applicants
were born with their vision impairments and have lived with them for
periods ranging from 35 to 57 years. Four (4) applicants developed
their conditions during early childhood and have lived with them for
periods ranging from 29 to 50 years. One sustained an accident at age
16 and has lived with his injured eye for 15 years. One suffered a
retinal detachment at age 30 and has lived with that condition for 23
years. Although one eye does not meet the vision standard in section
391.41(b)(10), each applicant has at least 20/40 corrected vision in
his other eye and, in his 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. Each of these
applicants satisfied the testing standards for his 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.
While possessing a valid CDL, these 12 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 7 to 37 years.
Most have worked for their current employer for over five years. In the
past three years, none of the applicants had an accident; three were
convicted of a speeding violation; the other nine drivers had no
traffic violations.
The qualifications, experience, and medical condition of each
applicant were stated and discussed in detail in 63 FR 30285, June 3,
1998. As no comments focused on the qualifications of a specific
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 in 63 FR 30285.
Basis for Exemption Determination
Under revised 49 U.S.C. 31136(e), the FHWA 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 applicants are likely to achieve an equal
or greater level of safety driving in interstate commerce as they have
achieved in intrastate commerce.
To evaluate the effect of these exemptions on safety, the FHWA has
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 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 demonstrates the
driving performance of monocular drivers in the program is better than
that of all CMV drivers collectively. (See 61 FR 13338, March 26,
1996.) That monocular drivers in the waiver program demonstrated their
ability to drive safely supports a conclusion that other monocular
drivers, with qualifications similar to those required by the waiver
program, can also adapt to their vision deficiency and 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 three year
record of the applicants, we note that the 12 applicants have had no
accidents and only 3 traffic violations in the last 3 years. They
achieved this record of safety while driving with their vision
impairment, demonstrating they have adapted their driving skills to
accommodate their condition. As the applicants' driving histories with
their vision deficiencies are predictors of future performance, the
FHWA concludes their ability to drive safely can be projected into the
future.
In addition, we believe applicants' intrastate driving experience
provides an adequate basis for evaluating their ability to drive safely
in interstate commerce. Intrastate driving, like interstate operations,
involves substantial driving on highways in the interstate system and
on other roads built to interstate standards. Moreover, driving in
congested urban areas
[[Page 54521]]
exposes the driver to more pedestrians and vehicle 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 a CMV safely under those conditions for
at least 7 years, most for much longer. Their experience and driving
record lead us to believe applicants are capable of operating in
interstate commerce as safely as they have in intrastate commerce.
Consequently, the FHWA 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 that reason, the
agency will grant the exemptions for the two-year period allowed by 49
U.S.C. 31136(e).
We recognize, however, that the vision of an applicant may change
and affect his ability to operate a commercial vehicle as safely as in
the past. As a condition of the exemption, therefore, the FHWA will
impose requirements on the 12 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 his vision
continues to measure at least 20/40 (Snellen) in the better eye, and
(b) by a medical examiner who attests he 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
his employer for retention in its driver qualification file or keep a
copy in his driver qualification file if he becomes 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.
Discussion of Comments
The FHWA received three (3) comments to the docket in response to
its June 3, 1998, notice of intent to approve the 12 applications for a
vision waiver. Each comment was considered and is discussed below.
Mr. Roger A. Sproul of Augusta, Maine, supported the FHWA's
determination to grant the waivers. Mr. Sproul is a truck driver who
has a vision deficiency in one eye. He agrees the applicants have
demonstrated their ability to drive CMVs safely.
Dr. Kurt T. Hegmann, an Associate Professor at the Medical College
of Wisconsin, opposes granting the waivers. He believes a person's
driving history, even that of ``an individual who has had one million
miles'' of driving experience, is not an indicator of his future
performance. In his opinion, only a controlled trial using a comparison
group and following epidemiological principles can yield a
determination of a person's ability to drive safely in the future. We
recognize opinions differ about the validity of using past driving
performance as a predictor of future performance. The studies discussed
above in ``Basis for Waiver Determination'', however, support the
FHWA's decision to use the driving record and experience of these 12
applicants as a predictor of their future driving performance.
The American Trucking Associations (ATA) opposes granting waivers
to drivers who cannot meet the existing medical standards. As it has
consistently stated, the ATA believes current standards ensure drivers
are in sufficiently good health to drive safely; it believes the vision
standard is particularly important because driving responses are based
primarily on what is seen. If waivers are granted, the ATA agrees the
12 drivers should be subject to the same annual examination
requirements imposed on the grandfathered drivers in FHWA Docket MC-96-
2 (61 FR 13338, March 26, 1996). The organization also believes the 12
should be required to report involvement in any DOT-recordable accident
directly to the FHWA and be prohibited from driving until they have
undergone a medical and vision examination following the accident.
Except for their vision, the health of the 12 drivers is not at
issue because they meet all other medical qualification standards in 49
CFR 391.41(b). The good driving records they have established with
their limited vision reflect their ability to make safe and appropriate
driving responses to visual stimuli. The FHWA is satisfied these 12
individuals qualify under 49 U.S.C. 31136 for an exemption from the
vision requirements, subject to the conditions enumerated in this
decision. One of those conditions requires them to undergo annual
vision examinations which will disclose any deterioration in their
visual capacity and will affect their qualifications for the exemption.
In view of their driving records over at least the last 3 years, there
is no reason to believe their vision will play any greater role in a
potential accident than the vision of a driver who meets the standard.
For that reason, the FHWA does not agree special conditions regarding
accident reporting and driving suspension are warranted.
The ATA also comments that granting vision waivers removes the
preemptive effect that FHWA regulations have over the Americans with
Disabilities Act (ADA), Public Law 101-336, 104 Stat. 327, as amended.
This action ``forces motor carriers to assume the risk of waiving
vision requirements that the FHWA itself has not determined can be
safely waived.'' As a result, ``motor carriers * * * are therefore
placed in the unenviable position of having to choose between allowing
waived drivers to operate their vehicles or facing possible litigation
for violation of the ADA if they refuse to hire such drivers.''
The exemptions granted in this proceeding do not affect the vision
standard in 49 CFR 391.41(b)(10), except as that standard applies to
these 12 drivers. For these drivers, we have determined the vision
standard can be safely waived. This determination does not relieve
anyone else from complying with the vision standard or any other
physical qualification requirement in 49 CFR part 391. For that reason,
our action has no general effect on the relationship between FHWA
safety regulations and the ADA.
The court's decision in Rauenhorst v. United States Department of
Transportation, Federal Highway Administration, 95 F.3d 715 (8th Cir.
1996), requires the FHWA to individually evaluate applications for
exemptions from the vision standard in 49 CFR 391.41(b)(10). The
statutory standard in 49 U.S.C. 31136(e) governs our evaluation of
exemption petitions. Meeting that standard, the 12 veteran drivers in
this case have demonstrated to our satisfaction that they can operate a
CMV with their current vision as safely in interstate commerce as they
have in intrastate commerce. For that reason, granting them an
exemption complements the purpose of the ADA by promoting employment
opportunities for the disabled without jeopardizing safety.
Conclusion
After considering the comments to the docket and based upon its
evaluation of the 12 waiver applications in accordance with Rauenhorst
v. United States Department of Transportation, Federal Highway
Administration, supra, the FHWA exempts Larry A. Dahleen, Earl D.
Edland, Dale Hellmann, Dan E.
[[Page 54522]]
Hillier, Robert J. Johnson, Bruce T. Loughary, Michael L. Manning, Leo
L. McMurray, Gerald Rietmann, Jimmy E. Settle, Robert A. Wagner, and
Hubert Whittenburg 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 his vision continues to measure at least 20/40 (Snellen) in
the better eye, and (b) by a medical examiner who attests he 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 his employer for retention in its driver
qualification file or keep a copy in his driver qualification file if
he becomes 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.
To satisfy 49 U.S.C. 31136(e) and 31315(b)(7), this exemption will
become effective 30 days from the date of publication in the Federal
Register to allow notification of State safety compliance and
enforcement personnel and the public that the 12 applicants will be
operating pursuant to the exemptions granted in this proceeding.
In accordance with revised 49 U.S.C. 31136(e), each exemption will
be valid for 2 years unless revoked earlier by the FHWA. 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. 31136. If the exemption is still effective
at the end of the 2-year period, the person may apply to the FHWA for a
renewal under procedures in effect at that time.
Authority: 49 U.S.C. 31136 and 31315; 23 U.S.C. 315; 49 CFR
1.48.
Issued on: October 2, 1998.
Kenneth R. Wykle,
Federal Highway Administrator.
[FR Doc. 98-27229 Filed 10-8-98; 8:45 am]
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