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[Federal Register: February 25, 2003 (Volume 68, Number 37)]
[Notices]
[Page 8794-8798]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25fe03-93]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[FMCSA Docket No. FMCSA-2002-12423]
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 Mr. Jerry W. Parker
from the vision requirement in the Federal Motor Carrier Safety
[[Page 8795]]
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, (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: 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 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 Sec. Sec.
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 (Sec.
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.
[[Page 8796]]
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[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)).
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[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.
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
[[Page 8797]]
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.
[[Page 8798]]
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.
[FR Doc. 03-4425 Filed 2-24-03; 8:45 am]
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