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[Federal Register: March 4, 2003 (Volume 68, Number 42)]
[Notices]
[Page 10298-10300]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04mr03-128]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[FMCSA Docket No. FMCSA-2002-13411]
Qualification of Drivers; Exemption Applications; Vision
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition.
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SUMMARY: The FMCSA announces its decision to exempt 33 individuals from
the vision requirement in the Federal Motor Carrier Safety Regulations
(FMCSRs).
DATES: March 4, 2003.
FOR FURTHER INFORMATION CONTACT: For information about the vision
exemptions in this notice, you may contact Ms. Sandra Zywokarte, Office
of Bus and Truck Standards and Operations, (202) 366-2987, Department
of Transportation, 400 Seventh Street, SW., Washington, DC 20590.
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
You may see all the comments online through the Document Management
System (DMS) at: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dmses.dot.gov.
Background
On December 12, 2002, the FMCSA published a Notice of its receipt
of applications from 33 individuals, and requested comments from the
public (67 FR 76439). The 33 individuals petitioned the FMCSA for
exemptions from the vision requirement in 49 CFR 391.41(b)(10), which
applies to drivers of commercial motor vehicles (CMVs) in interstate
commerce. They are: Michael D. Archibald, Howard K. Bradley, Kirk G.
Braegger, Daniel L. Butler, Ambrosio E. Calles, Sandy Clark, Jose G.
Cruz, Everett A. Doty, Donald K. Driscoll, Donald J. Goretski, Alf M.
Gronstedt, David R. Gross, Thomas L. Hall, Raymond G. Hayden, Harry P.
Henning, Bruce G. Horner, Jeffery S. Lathrop, Tommy R. Masterson,
Daniel A. McKeon, Ralph J. Miles, William R. New, Kirby G. Oathout,
Ronald F. Prezzia, Joseph J. Rettenmeier, Thomas C. Rylee, Stanley B.
Salkowski III, Wolfgang V. Spekis, James A. Stoudt, Michael G. Thomas,
Brian S. Thompson, William H. Twardus, Ronald J. Watt, and Dale R.
Wheeler.
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 the 33 petitions on their merits
and made a determination to grant the exemptions to all of them. The
comment period closed on January 13, 2003. Two comments were received,
and their contents were carefully considered by the FMCSA in reaching
the final decision to grant the petitions.
Vision And Driving Experience of the Applicants
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[deg] in the horizontal meridian in each eye, and the ability to
recognize the colors of traffic signals and devices showing standard
red, green, and amber (49 CFR 391.41(b)(10)).
Since 1992, the Federal Highway Administration (FHWA) has
undertaken studies to determine if this vision standard should be
amended. The final report from our medical panel
[[Page 10299]]
recommends changing the field of vision standard from 70[deg] to
120[deg], while leaving the visual acuity standard unchanged. (See
Frank C. Berson, M.D., Mark C. Kuperwaser, M.D., Lloyd Paul Aiello,
M.D., and James W. Rosenberg, M.D., ``Visual Requirements and
Commercial Drivers'', October 16, 1998, filed in the docket, FHWA-98-
4334.) 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.
The 33 applicants fall into this category. They are unable to meet
the vision standard in one eye for various reasons, including
amblyopia, retinal and macular scars, and loss of an eye due to trauma.
In most cases, their eye conditions were not recently developed. All
but seven of the applicants were either born with their vision
impairments or have had them since childhood. The seven individuals who
sustained their vision conditions as adults have had them for periods
ranging from 6 to 40 years.
Although each applicant has one eye which does not meet the vision
standard in 49 CFR 391.41(b)(10), each has at least 20/40 corrected
vision in the other eye and, in a doctor's opinion, has sufficient
vision to perform all the tasks necessary to operate a CMV. The
doctors' opinions are supported by the applicants' possession of valid
commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before
issuing CDLs, States subject drivers to knowledge and performance tests
designed to evaluate their qualifications to operate a CMV. All these
applicants satisfied the testing standards for their State of
residence. By meeting State licensing requirements, the applicants
demonstrated their ability to operate a commercial vehicle, with their
limited vision, to the satisfaction of the State. The Federal
interstate qualification standards, i.e. the FMCSRs, however, require
more.
While possessing a valid CDL or non-CDL, these 33 drivers have been
authorized to drive a CMV in intrastate commerce, even though their
vision disqualifies them from driving in interstate commerce. They have
driven CMVs with their limited vision for careers ranging from 3 to 40
years. In the past 3 years, one of the drivers has had a conviction for
a traffic violation--speeding. Five drivers were involved in an
accident but did not receive a citation.
The qualifications, experience, and medical condition of each
applicant were stated and discussed in detail in the December 12, 2002,
Notice. Since there were no docket comments on the specific merits or
qualifications of any applicant, we have not repeated the individual
profiles here. Our summary analysis of the applicants is supported by
the information published at 67 FR 76439.
Basis for Exemption Determination
Under 49 U.S.C. 31315 and 31136(e), the FMCSA may grant an
exemption from the vision standard in 49 CFR 391.41(b)(10) if the
exemption is likely to achieve an equivalent or greater level of safety
than would be achieved without the exemption. Without the exemption,
applicants will continue to be restricted to intrastate driving. With
the exemption, applicants can drive in interstate commerce. Thus, our
analysis focuses on whether an equal or greater level of safety is
likely to be achieved by permitting each of these drivers to drive in
interstate commerce as opposed to restricting him or her to driving in
intrastate commerce.
To evaluate the effect of these exemptions on safety, the FMCSA
considered not only the medical reports about the applicants' vision,
but also their driving records and experience with the vision
deficiency. To qualify for an exemption from the vision standard, the
FMCSA requires a person to present verifiable evidence that he or she
has driven a commercial vehicle safely with the vision deficiency for 3
years. Recent driving performance is especially important in evaluating
future safety, according to several research studies designed to
correlate past and future driving performance. Results of these studies
support the principle that the best predictor of future performance by
a driver is his/her past record of accidents and traffic violations.
Copies of the studies have been added to the docket. (FHWA-98-3637)
We believe we can properly apply the principle to monocular
drivers, because data from the vision waiver program clearly
demonstrate the driving performance of experienced monocular drivers in
the program is better than that of all CMV drivers collectively. (See
61 FR 13338, 13345, March 26, 1996.) The fact that experienced
monocular drivers with good driving records in the waiver program
demonstrated their ability to drive safely supports a conclusion that
other monocular drivers, meeting the same qualifying conditions as
those required by the waiver program, are also likely to have adapted
to their vision deficiency and will continue to operate safely.
The first major research correlating past and future performance
was done in England by Greenwood and Yule in 1920. Subsequent studies,
building on that model, concluded that accident rates for the same
individual exposed to certain risks for two different time periods vary
only slightly. (See Bates and Neyman, University of California
Publications in Statistics, April 1952.) Other studies demonstrated
theories of predicting accident proneness from accident history coupled
with other factors. These factors--such as age, sex, geographic
location, mileage driven and conviction history--are used every day by
insurance companies and motor vehicle bureaus to predict the
probability of an individual experiencing future accidents. (See Weber,
Donald C., ``Accident Rate Potential: An Application of Multiple
Regression Analysis of a Poisson Process,'' Journal of American
Statistical Association, June 1971.) A 1964 California Driver Record
Study prepared by the California Department of Motor Vehicles concluded
that the best overall accident predictor for both concurrent and
nonconcurrent events is the number of single convictions. This study
used 3 consecutive years of data, comparing the experiences of drivers
in the first 2 years with their experiences in the final year.
Applying principles from these studies to the past 3-year record of
the 33 applicants receiving an exemption, we note that the applicants
have had only five accidents and one traffic violation in the last 3
years. The applicants achieved this record of safety while driving with
their vision impairment, demonstrating the likelihood that they have
adapted their driving skills to accommodate their condition. As the
applicants' ample driving histories with their vision deficiencies are
good predictors of future performance, the FMCSA concludes their
ability to drive safely can be projected into the future.
We believe the applicants' intrastate driving experience and
history provide an adequate basis for predicting their ability to drive
safely in interstate commerce. Intrastate driving, like interstate
operations, involves substantial driving on highways on the interstate
system and on other roads built to interstate standards. Moreover,
driving in congested urban areas exposes the driver to more pedestrian
and vehicular traffic than exists on interstate highways. Faster
reaction to traffic and traffic signals is generally
[[Page 10300]]
required because distances are more compact than on highways. These
conditions tax visual capacity and driver response just as intensely as
interstate driving conditions. The veteran drivers in this proceeding
have operated CMVs safely under those conditions for at least 3 years,
most for much longer. Their experience and driving records lead us to
believe that each applicant is capable of operating in interstate
commerce as safely as he or she has been performing in intrastate
commerce. Consequently, the FMCSA finds that exempting these applicants
from the vision standard in 49 CFR 391.41(b)(10) is likely to achieve a
level of safety equal to that existing without the exemption. For this
reason, the agency will grant the exemptions for the 2-year period
allowed by 49 U.S.C. 31315 and 31136(e) to the 33 applicants listed in
the December Notice.
We recognize that the vision of an applicant may change and affect
his/her ability to operate a commercial vehicle as safely as in the
past. As a condition of the exemption, therefore, the FMCSA will impose
requirements on the 33 individuals consistent with the grandfathering
provisions applied to drivers who participated in the agency's vision
waiver program.
Those requirements are found at 49 CFR 391.64(b) and include the
following: (1) That each individual be physically examined every year
(a) by an ophthalmologist or optometrist who attests that the vision in
the better eye continues to meet the standard in 49 CFR 391.41(b)(10),
and (b) by a medical examiner who attests that the individual is
otherwise physically qualified under 49 CFR 391.41; (2) that each
individual provide a copy of the ophthalmologist's or optometrist's
report to the medical examiner at the time of the annual medical
examination; and (3) that each individual provide a copy of the annual
medical certification to the employer for retention in the driver's
qualification file, or keep a copy in his/her driver's qualification
file if he/she is self-employed. The driver must also have a copy of
the certification when driving, for presentation to a duly authorized
Federal, State, or local enforcement official.
Discussion of Comments
The FMCSA received two comments in this proceeding. The comments
were considered and are discussed below.
One individual wrote in support of granting an exemption to Mr.
Archibald.
Advocates for Highway and Auto Safety (Advocates) expresses
continued opposition to the FMCSA's policy to grant exemptions from the
Federal Motor Carrier Safety Regulations, including the driver
qualification standards. Specifically, Advocates: (1) Objects to the
manner in which the FMCSA presents driver information to the public and
makes safety determinations; (2) objects to the agency's reliance on
conclusions drawn from the vision waiver program; (3) claims the agency
has misinterpreted statutory language on the granting of exemptions (49
U.S.C. 31315 and 31136(e)); and finally (4) suggests that a recent
Supreme Court decision affects the legal validity of vision exemptions.
The issues raised by Advocates were addressed at length in 64 FR
51568 (September 23, 1999), 64 FR 66962 (November 30, 1999), 64 FR
69586 (December 13, 1999), 65 FR 159 (January 3, 2000), 65 FR 57230
(September 21, 2000), and 66 FR 13825 (March 7, 2001). We will not
address these points again here, but refer interested parties to those
earlier discussions.
Conclusion
After considering the comments to the docket and based upon its
evaluation of the 33 exemption applications, the FMCSA exempts Michael
D. Archibald, Howard K. Bradley, Kirk G. Braegger, Daniel L. Butler,
Ambrosio E. Calles, Sandy Clark, Jose G. Cruz, Everett A. Doty, Donald
K. Driscoll, Donald J. Goretski, Alf M. Gronstedt, David R. Gross,
Thomas L. Hall, Raymond G. Hayden, Harry P. Henning, Bruce G. Horner,
Jeffery S. Lathrop, Tommy R. Masterson, Daniel A. McKeon, Ralph J.
Miles, William R. New, Kirby G. Oathout, Ronald F. Prezzia, Joseph J.
Rettenmeier, Thomas C. Rylee, Stanley B. Salkowski III, Wolfgang V.
Spekis, James A. Stoudt, Michael G. Thomas, Brian S. Thompson, William
H. Twardus, Ronald J. Watt, and Dale R. Wheeler from the vision
requirement in 49 CFR 391.41(b)(10), subject to the following
conditions: (1) That each individual be physically examined every year
(a) by an ophthalmologist or optometrist who attests that the vision in
the better eye continues to meet the standard in 49 CFR 391.41(b)(10),
and (b) by a medical examiner who attests that the individual is
otherwise physically qualified under 49 CFR 391.41; (2) that each
individual provide a copy of the ophthalmologist's or optometrist's
report to the medical examiner at the time of the annual medical
examination; and (3) that each individual provide a copy of the annual
medical certification to the employer for retention in the driver's
qualification file, or keep a copy in his/her driver's qualification
file if he/she is self-employed. The driver must also have a copy of
the certification when driving, so it may be presented to a duly
authorized Federal, State, or local enforcement official.
In accordance with 49 U.S.C. 31315 and 31136(e), each exemption
will be valid for 2 years unless revoked earlier by the FMCSA. The
exemption will be revoked if: (1) The person fails to comply with the
terms and conditions of the exemption; (2) the exemption has resulted
in a lower level of safety than was maintained before it was granted;
or (3) continuation of the exemption would not be consistent with the
goals and objectives of 49 U.S.C. 31315 and 31136. If the exemption is
still effective at the end of the 2-year period, the person may apply
to the FMCSA for a renewal under procedures in effect at that time.
Issued on: February 24, 2003.
Pamela M. Pelcovits,
Acting Associate Administrator for Policy and Program Development.
[FR Doc. 03-5014 Filed 3-3-03; 8:45 am]
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