03-4425. Qualification of Drivers; Exemption Applications; Vision

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of final disposition.

SUMMARY:

The FMCSA announces its decision to exempt Mr. Jerry W. Parker from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs). The FMCSA is deferring its decision regarding Mr. Parker's qualification under the Federal alternative physical qualification standards for loss of limbs until he obtains a prosthetic device, becomes proficient in using the device, and completes the Skill Performance Evaluation (SPE) certification process. Although Mr. Parker is exempted from the vision requirements, he may not operate a commercial vehicle in interstate commerce until he meets the physical qualification standard for the loss of limbs, and this agency issues a SPE certificate.

DATES:

February 25, 2003.

FOR FURTHER INFORMATION CONTACT:

For information about the vision exemption in this notice, you may contact Ms. Sandra Zywokarte, Office of Bus and Truck Standards and Operations, [phone], 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:

You may see all the comments online through the Document Management System (DMS) at: http://dmses.dot.gov.

Background

On August 22, 2002, the FMCSA published a notice of applications (67 FR 54525) requesting comments on Mr. Parker's request for an exemption from the Federal standards for vision at 49 CFR 391.41(b)(10) and for the loss of limbs at 49 CFR 391.41(b)(1). Mr. Parker does not meet the vision requirements because of severe vision loss in his right eye. He does not meet the physical qualification requirements for the loss of limbs as he is missing his left arm and is unable to demonstrate power grasp prehension and precision prehension with each upper limb separately. To operate in interstate commerce, Mr. Parker must be granted an exemption from the vision requirements and must be granted a skill performance evaluation (SPE) certificate.

Mr. Parker applied for a waiver from the vision requirements in 1996 under criteria established under the agency's former Vision Waiver Program. The criteria included a provision that vision waiver applicants must be otherwise medically qualified under all other physical qualification requirements at 49 CFR 391.41. When the agency discovered that Mr. Parker's left arm had been amputated at the shoulder, it denied his application for a vision waiver because the agency determined that there was insufficient evidence to determine if someone with both a vision impairment and amputation could safely operate a CMV.

Mr. Parker filed a petition for review with the United States Court of Appeals for the Sixth Circuit. The Sixth Circuit reversed the agency's denial, and remanded the case to the agency with instructions to create a functional capacity test consistent with FMCSA's findings that an individual's driving record is indicative of future performance which will evaluate Mr. Parker's driving skills based upon his individual capabilities (Jerry W. Parker v. United States Department of Transportation, 207 F. 3d 359 (6th Cir. 2000)). Mr. Parker's request for regulatory relief is discussed in detail in the August 22, 2002, notice (67 FR 54525).

In response to the Court's decision, the FMCSA has determined that Mr. Parker's request for a vision exemption will be considered on its own merits as outlined within the vision exemption program and the regulations found in 49 CFR part 381. Additionally, the FMCSA will evaluate Mr. Parker's amputation under the alternative physical qualification standards for the loss of limbs found in 49 CFR 391.41(b)(1) and 391.49. In other words, each impairment that would preclude Mr. Parker from complying with the physical qualification standards would be considered and evaluated separately under the agency's process for granting or denying the vision exemption application or SPE certificate.

Under 49 U.S.C. 31315 and 31136(e), the FMCSA may grant an exemption for a 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.” The statute also allows the agency to renew exemptions at the end of the 2-year period. Accordingly, the FMCSA has evaluated Mr. Parker's application for a vision exemption on its merits and made a determination to grant the exemption. The comment period closed on September 23, 2002. Seven comments were received, and their contents were carefully considered by the FMCSA in reaching the final decision to grant the exemption.

Although FMCSA is granting Mr. Parker a vision exemption, this does not allow Mr. Parker to drive in interstate commerce until he meets the alternative physical qualification standards for the loss of limbs and the use of a prosthetic device as outlined within 49 CFR 391.41(b)(1) and 391.49 (SPE certificate).

Deferring Decision on Mr. Parker Qualifying Under §§ 391.41(b)(1) and 391.49

With today's decision to grant a vision exemption, Mr. Parker is “otherwise” qualified to drive a commercial motor vehicle, when he meets the alternate physical qualification procedures under the SPE certification program. FMCSA is deferring making a decision regarding Mr. Parker's qualification under the Federal standards for loss of limbs until he obtains a prosthetic device, becomes proficient in using the device, and completes the SPE.

FMCSA has a SPE certification process that allows limb-amputee and limb-impairment CMV drivers to demonstrate, on an individual basis, their ability to operate safely the specific vehicle they intend to drive. Drivers must be able to demonstrate power grasp prehension (the ability to hold, clutch, clasp, or seize the steering wheel firmly) and precision prehension (the ability to effectively turn switches on and off and control other vehicle equipment while performing routine and emergency driver operations) with each upper limb separately (§ 391.49(d)(3)(i)(B)). Over the years, FMCSA has granted more than 2,000 SPE certificates to CMV drivers certifying their capability to operate legally and safely over the nation's highways.

Based on the information provided by Mr. Parker, he does not use a prosthetic device. Mr. Parker is missing his left arm and is unable to demonstrate power grasp prehension and precision prehension with each arm as required under the FMCSRs. Mr. Parker will need to obtain and wear a prosthetic or orthotic device, which enables him to demonstrate power grasp and precision prehension, and become proficient in using the device before we are able to proceed with the SPE certification process. Once Mr. Parker obtains a prosthetic device and can demonstrate power grasp prehension and precision prehension, FMCSA will provide him the opportunity to demonstrate, on an individual basis, his ability to operate safely the specific vehicle he intends to drive. This evaluation will include driving and non-driving safety related activities conducted by an Agency qualified SPE examiner.

Mr. Parker submitted to a road test conducted by a retired State Trooper. This individual is not certified under FMCSA's SPE program to administer an SPE evaluation, and that road test was not administered in accordance with the regulations found at 49 CFR 391.49. Consequently, the FMCSA cannot accept the results of that test.

The FMCSRs provide a standard set of requirements for all CMV drivers who wish to, or who do operate in interstate commerce. The medical standard in 49 CFR 391.41(b)(1), or the alternative physical qualification standards for the loss of limbs found in 49 CFR 391.49, are based upon identified critical driving tasks associated with specific types of amputation or limb-impairments as outlined by the Krusen Center for Research and Engineering of the Moss Rehabilitation Hospital in Philadelphia, Pennsylvania. These standards were incorporated into the agency's regulations in 1985, and require a properly fitted and appropriate prosthesis, the demonstration of proficient use of the prosthesis, and the requirement of the use of the device while driving. Under existing Federal regulations, States may enforce safety regulations governing intrastate operations that vary from the Federal Motor Carrier Safety Regulations. The Motor Carrier Safety Assistance Program (49 CFR part 350) includes tolerance guidelines governing State oversight of intrastate commerce. Consistent with these requirements, the State of Ohio has adopted intrastate regulations governing commercial driver vision qualifications. Here, the FMCSA must assure all other States, in which Mr. Parker might operate, that he is fully qualified under the Federal regulations. We are unable to reach that conclusion at this time, but we stand ready to immediately proceed with the SPE evaluation process when Mr. Parker obtains a prosthesis and can demonstrate the adequate use of that device in accordance with the alternative physical qualification standards.

Vision and Driving Experience of the Applicant

The vision requirement in the FMCSRs 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° 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)).

Beginning in 1992, the Federal Highway Administration (FHWA) has undertaken studies to determine if this vision standard should be amended. The final report from our most recent vision medical panel recommends changing the field of vision standard from 70° to 120°, 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.) The panel's conclusion supported 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.

Mr. Parker falls into this category. He is unable to meet the vision standard in his right eye because of a congenital eye condition known as Coats disease. However, he has corrected vision of 20/20 in his left eye and, in a doctor's opinion, has sufficient vision to perform all the tasks necessary to operate a CMV. The doctor's opinion is supported by the applicant's possession of valid commercial driver's license (CDL) to operate CMVs in intrastate commerce. Before issuing CDLs, States subject drivers to knowledge and performance tests designed to evaluate their qualifications to operate a CMV. Mr. Parker satisfied the testing standards for his State of residence. By meeting State licensing requirements, Mr. Parker demonstrated his ability to operate a commercial vehicle in intrastate, with his limited vision, to the satisfaction of his home State.

Possessing a valid CDL, Mr. Parker has been authorized to drive a CMV in intrastate commerce, even though his vision disqualifies him from driving in interstate commerce. He has driven CMVs with his limited vision for 17 years. In the past 3 years, he has had no accidents or convictions for traffic violations in a CMV.

Mr. Parker's qualifications, experience, and medical condition were stated and discussed in detail in the August 22, 2002, notice (67 FR 54525).

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, by granting the exemption, it is likely that the level of safety will be equivalent to, or greater than, the level that would be achieved absent the issuance of such exemption. Although the FMCSA is granting Mr. Parker a vision exemption, this does not allow Mr. Parker to drive in interstate commerce. This is because he does not meet the medical standard in 49 CFR 391.41(b)(1), or the alternative physical qualification standards for the loss of limbs at 49 CFR 391.49.

To evaluate the effect of the exemption on safety, the FMCSA considered not only the medical report about the applicant's vision, but also his driving record 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 Mr. Parker's past 3-year record, we note that he has had no accidents or traffic violations in the last 3 years. He achieved this record of safety while driving with his vision impairment, demonstrating the likelihood that he has adapted his driving skills to accommodate his condition. As his ample driving history with his vision deficiency is a good predictor of future performance, the FMCSA concludes his ability to drive safely can be projected into the future.

We believe Mr. Parker's intrastate driving experience and history provide an adequate basis for predicting his ability to drive safely in interstate commerce with his vision impairment. While not providing the variety of driving conditions and varying climate and geographic conditions of interstate driving, intrastate driving does involve operating on the interstate system and other roads built to interstate standards. Moreover, driving in congested urban areas 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.

Mr. Parker has operated CMVs safely under those conditions for much longer than 3 years. The FMCSA finds that exempting Mr. Parker 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 exemption for the 2-year period allowed by 49 U.S.C. 31315 and 31136(e) to Mr. Parker.

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 Mr. Parker 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 Mr. Parker 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 he is otherwise physically qualified under 49 CFR 391.41; (2) that Mr. Parker 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 Mr. Parker provide a copy of the annual medical certification to his employer for retention in his driver's qualification file, or keep a copy in his driver's qualification file if he is self-employed. He 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 seven comments in this proceeding. The comments were considered and are discussed below.

Of the seven comments, three were in favor of Mr. Parker receiving both exemptions. All three supporting commenters knew Mr. Parker on a personal level and expressed their feelings that Mr. Parker had worked hard and was a good and safe driver.

The other four comments were opposed to Mr. Parker receiving exemptions. One individual wrote that it is not responsible to consider each disability separately without considering them in total to determine an individual driver's ability to safely operate a CMV and that physical qualifications are necessary since the creation of a commercial driving simulator that would evaluate both normal and emergency driving of all types is not realistic.

The FMCSA has determined that Mr. Parker's request for exemptions to the qualification standards will be handled as separate applications for exemptions under existing procedures at 49 CFR part 381, or the SPE program (49 CFR 391.49), as appropriate.

A Driver Trainer/Accident Investigator for a school district wrote in favor of a denial of the exemption request based on the need to strictly enforce regulations for safety on the roads.

The FMCSA's first obligation is to keep our roadways safe. Our safety regulations have a single goal—to reduce the number of CMV crashes and fatalities on the Nation's highways. Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption from a regulation, however, only 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.”

A medical examiner wrote that more information about the extent of the impairment of the right arm and why Mr. Parker does not wear prosthetics, and a skills performance examination are necessary to make a determination.

The FMCSA has since received information from a psychiatrist regarding the impairment of Mr. Parker's right arm. In a letter dated November 8, 2002, the psychiatrist notes: “that based on my examination today, Jerry has no impairment of the right upper extremity.”

Advocates for Highway and Auto Safety (AHAS) expresses opposition to granting an exemption to Mr. Parker because: (1) There is no research on which to base a determination that an applicant with multiple impairments meets the statutory requirement for an exemption; (2) the FMCSA has no basis for granting an exemption for loss of limb to an individual who does not wear a prosthesis and (3) there is no basis for separately considering the two impairments.

AHAS opposes the granting of exemptions to a single applicant from multiple medical and physical requirements in the FMCSRs because there is no foundation in fact or medical research on which a safety determination can be made. AHAS also states that the FMCSA has presented no analysis and has not cited any research to support the granting of exemptions in this circumstance. They point out that in denying the applicant's earlier request for an exemption in 1996, the FMCSA's predecessor agency stated that it lacked evidence to determine if an individual with these impairments could safely operate a CMV. AHAS stated that FMCSA has presented no evidence to contradict the 1996 analysis.

AHAS further states that the requirement for a driver to be capable of demonstrating precision prehension and power grasp prehension in each upper limb is based on medical information. They claim that, in line with this requirement, a driver with an upper limb amputation or impairment must wear a properly fitted and appropriate prosthesis to safely operate a CMV. AHAS then states that there is no record in this notice presenting evidence to refute the prosthesis requirement.

AHAS avers that FMCSA has presented no information or evidence that addresses the potential interaction of the two impairments and its effect while driving a CMV. They claim that the lack of a prosthesis alone is a sufficient basis on which to deny the exemption request. The addition of poor vision is a factor that presents a more complex medical and safety condition.

The agency has no data to refute the requirement that a prosthesis must be used to properly and safely operate a CMV. Therefore, in today's decision the FMCSA has deferred Mr. Parker's request for a SPE certificate until he obtains a properly fitted prosthesis and demonstrates full use of that device in accordance with the alternative physical qualification standards for the loss of limbs. If Mr. Parker fails to obtain a properly fitted prosthesis the FMCSA will not issue the SPE certificate. While the FMCSA has no specific data to address the level of safety that can be achieved when an applicant has two impairments, the agency does have data that identifies the requirements needed to safely operate a CMV in interstate commerce with the vision deficiency in question, and with a properly fitted prosthesis. The FMCSA has determined that it is reasonable to use this known data to grant the vision exemption and defer a decision on the physical qualification issue (loss of limb).

Our response today is also guided by the Sixth Circuit's prior ruling in this matter. We believe that today's decision is consistent with the Court's remand and that the FMCSA is using a functional capacity test that is consistent with our prior findings that an individual's driving record is indicative of future performance and considers Mr. Parker's driving skills based upon his individual capabilities.

The FMCSA believes that its SPE certification process provides the agency with a functional capacity type test to evaluate Mr. Parker's individual capabilities. The SPE certification process allows limb-amputee and limb-impaired CMV drivers with good driving records to demonstrate, on an individual basis, their ability to operate safely the specific vehicle they intend to drive. This process is an assessment of the functional capabilities of the driver as they relate to the driver's ability to perform normal tasks associated with operating a CMV, and is based on the Amputee Driver Functional Matrix Chart (Krusen Study, 1977). The Matrix, formulated on the assumption that a prosthetic device is being worn by the amputee, identifies critical driving tasks associated with specific types of amputation or limb impairment and rates their difficulty given the specific handicap type. The SPE certification specialist reviews the functional capacities of the SPE applicant within the Matrix to focus on potential areas of difficulty, before administering an on-the-road test. Prior to the on-the-road evaluation, the process includes a review of the applicant's driving record for the last 3 years. Nonetheless, the FMCSA will continue to review this process and will examine ways to obtain funding to undertake a more extensive review of individuals with multiple impairments.

Conclusion

After considering the comments to the docket and based upon its evaluation of the vision exemption application, the FMCSA exempts Mr. Parker from the vision requirement in 49 CFR 391.41(b)(10), subject to the following conditions: (1) That Mr. Parker 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 he is otherwise physically qualified under 49 CFR 391.41; (2) that Mr. Parker 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 Mr. Parker provide a copy of the annual medical certification to his employer for retention in his driver's qualification file, or keep a copy in his driver's qualification file if he is 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.

Although the FMCSA has granted Mr. Parker a vision exemption, this action does not allow Mr. Parker to drive in interstate commerce because he has not met the physical qualification requirements for the loss of limbs. Action on Mr. Parker's SPE certification is deferred.

In accordance with 49 U.S.C. 31315 and 31136(e), the exemption will be valid for 2 years unless revoked earlier by the FMCSA. The exemption will be revoked if: (1) Mr. Parker 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, Mr. Parker may apply to the FMCSA for a renewal under procedures in effect at that time.

Issued on: February 23, 2003.

Pamela M. Pelcovits,

Acting Associate Administrator, Policy and Program Development.