Qualification of Drivers; Exemption Applications; Vision, 16887-16892 [05-6476]
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Exemption Decision
Under 49 U.S.C. 31315 and 31136(e),
FMCSA may renew an exemption for a
two-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
procedures for requesting an exemption
(including renewals) are set out in 49
CFR part 381. This notice addresses 13
individuals who have requested renewal
of their exemptions from 49 CFR
391.41(b)(10) concerning vision
requirements in a timely manner.
FMCSA has evaluated these 13
applications for renewal on their merits
and decided to extend each exemption
for a renewable two-year period. They
are:
John D. Bolding, Jr.
Michael P. Curtin
Richard L. Elyard
Michael R. Forschino
Richard H. Hammann
Billy L. Johnson
Christopher J. Kane
Wallace F. Mahan, Sr.
Kirby G. Oathout
James R. Petre
William E. Reveal
Duane L. Riendeau
Janusz Tyrpien
These exemptions are extended
subject to the following conditions: (1)
That each individual have a physical
exam 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
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medical certification to the employer for
retention in the driver’s qualification
file and retain a copy of the certification
on his/her person while driving for
presentation to a duly authorized
Federal, State, or local enforcement
official. Each exemption will be valid
for two years unless rescinded earlier by
FMCSA. The exemption will be
rescinded if: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(e).
Basis for Renewing Exemptions
Under 49 U.S.C. 31315(b)(1), an
exemption may be granted for no longer
than two years from its approval date
and may be renewed upon application
for additional two year periods. In
accordance with 49 U.S.C. 31315 and
31136(e), each of the 13 applicants has
satisfied the entry conditions for
obtaining an exemption from the vision
requirements (63 FR 66226; 64 FR
16517; 66 FR 17994; 68 FR 15037; 68 FR
10301; 68 FR 19596). Each of these 13
applicants has requested timely renewal
of the exemption and has submitted
evidence showing that the vision in the
better eye continues to meet the
standard specified at 49 CFR
391.41(b)(10) and that the vision
impairment is stable. In addition, a
review of each record of safety while
driving with the respective vision
deficiencies over the past two years
indicates each applicant continues to
meet the vision exemption standards.
These factors provide an adequate basis
for predicting each driver’s ability to
continue to drive safely in interstate
commerce. Therefore, FMCSA
concludes that extending the exemption
for each renewal applicant for a period
of two years is likely to achieve a level
of safety equal to that existing without
the exemption.
Comments
FMCSA will review comments
received at any time concerning a
particular driver’s safety record and
determine if the continuation of the
exemption is consistent with the
requirements at 49 U.S.C. 31315 and
31136(e). However, FMCSA requests
that interested parties with specific data
concerning the safety records of these
drivers submit comments by May 2,
2005.
In the past FMCSA has received
comments from Advocates for Highway
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16887
and Auto Safety (Advocates) expressing
continued opposition to FMCSA’s
procedures for renewing exemptions
from the vision requirement in 49 CFR
391.41(b)(10). Specifically, Advocates
objects to the agency’s extension of the
exemptions without any opportunity for
public comment prior to the decision to
renew, and reliance on a summary
statement of evidence to make its
decision to extend the exemption of
each driver.
The issues raised by Advocates were
addressed at length in 69 FR 51346
(August 18, 2004). FMCSA continues to
find its exemption process appropriate
to the statutory and regulatory
requirements.
Issued on: March 28, 2005.
Rose A. McMurray,
Associate Administrator, Policy and Program
Development.
[FR Doc. 05–6474 Filed 3–31–05; 8:45 am]
BILLING CODE 4910–EX–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[FMCSA Docket No. FMCSA–2005–20027]
Qualification of Drivers; Exemption
Applications; Vision
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of final disposition.
AGENCY:
SUMMARY: The FMCSA announces its
decision to exempt 28 individuals from
the vision requirement in the Federal
Motor Carrier Safety Regulations
(FMCSRs). The exemptions will enable
these individuals to qualify as drivers of
commercial motor vehicles (CMVs) in
interstate commerce without meeting
the vision standard prescribed in 49
CFR 391.41(b)(10).
DATES: April 1, 2005.
FOR FURTHER INFORMATION CONTACT: Dr.
Mary D. Gunnels, Office of Bus and
Truck Standards and Operations, (202)
366–4001, FMCSA, Department of
Transportation, 400 Seventh Street,
SW., Washington, DC 20590–0001.
Office hours are from 8 a.m. to 5 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: https://dmses.dot.gov.
Background
On January 14, 2005, the FMCSA
published a notice of receipt of
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exemption applications from 29
individuals, and requested comments
from the public (70 FR 2701). The 29
individuals petitioned the FMCSA for
exemptions from the vision requirement
in 49 CFR 391.41(b)(10), which applies
to drivers of CMVs in interstate
commerce. They are: Eddie Alejandro,
Eldred S. Boggs, David F. Breuer, James
T. Butler, Roger K. Cox, Richard S.
Cummings, Joseph A. Dean, Donald P.
Dodson, Jr., William H. Goss, Eric W.
Gray, James K. Holmes, Daniel L. Jacobs,
Jose M. Limon-Alvarado, Robert S.
Loveless, Jr., Eugene R. Lydick, John W.
Montgomery, Danny R. Pickelsimer,
Zeljko Popovac, Juan Manuel M. Rosas,
Francis L. Savell, Richie J. Schwendy,
David M. Stout, Artis Suitt, Gregory E.
Thompson, Kerry W. VanStory, Harry S.
Warren, Carl L. Wells, Prince E.
Williams, and Keith L. Wraight.
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 29 applications on their
merits and made a determination to
grant exemptions to 28 of those persons
who applied for them. The comment
period closed on February 14, 2005. One
comment was received, and its contents
were carefully considered by the
FMCSA in reaching the final decision to
grant the exemptions.
The FMCSA has not made a decision
on the application of Keith L. Wraight.
Subsequent to the publication of the
notice of applications and request for
comments on January 14, 2005 (70 FR
2701), the agency received additional
information from its check of his motor
vehicle record, and we are evaluating
that information. A decision on this
application will be made in the future.
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° in the horizontal
meridian in each eye, and the ability to
recognize the colors of traffic signals
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and devices showing standard red,
green, and amber (49 CFR
391.41(b)(10)).
Since 1992, the agency has
undertaken studies to determine if this
vision standard should be amended.
The final report from our 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, FMCSA–98–4334.)
The panel’s conclusion supports the
agency’s view that the present visual
acuity 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 28 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 12 of the applicants were either
born with their vision impairments or
have had them since childhood. The 12
individuals who sustained their vision
conditions as adults have had them for
periods ranging from 13 to 46 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.
While possessing a valid CDL or nonCDL, these 28 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 30 years. In the
past 3 years, two of the drivers have had
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convictions for traffic violations. One of
these convictions was for speeding and
one was for ‘‘failure to obey traffic
sign.’’ None of the drivers was involved
in a crash.
The qualifications, experience, and
medical condition of each applicant
were stated and discussed in detail in
the January 14, 2005, notice (70 FR
2701). Since there were no substantial
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 on January 14,
2005 (70 FR 2701).
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 crashes and traffic
violations. Copies of the studies may be
found at docket number FMCSA–98–
3637.
We believe we can properly apply the
principle to monocular drivers, because
data from a former FMCSA waiver study
program clearly demonstrates that the
driving performance of experienced
monocular drivers in the program is
better than that of all CMV drivers
collectively. (See 61 FR 13338 and
13345; March 26, 1996.) Because
experienced monocular drivers with
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good driving records in the waiver
program demonstrated their ability to
drive safely, this fact 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 crash 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 crash proneness from crash
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 crashes. (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 crash
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
28 applicants receiving an exemption,
we note that the applicants have had no
crashes and only two traffic violations
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
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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 between
them are more compact. 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 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 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 is granting the exemptions for
the 2-year period allowed by 49 U.S.C.
31315 and 31136(e) to 28 of the 29
applicants listed in the notice of January
14, 2005 (70 FR 2701).
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 28
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 selfemployed. 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 one comment in
this proceeding. The comment was
considered and is discussed below.
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Advocates for Highway and Auto
Safety (Advocates) expresses continued
opposition to the FMCSA’s policy to
grant exemptions from the FMCSRs,
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
1999 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).
The FMCSA’s responses are restated
below.
On the first issue regarding the
manner in which the FMCSA presents
driver information to the public and
makes safety determinations, Advocates
questions how various aspects of
exemption application information are
verified. In particular, Advocates states
that the public is not advised about
outside verification of each applicant’s
miles driven, the number of years
driving commercial vehicles, the type of
vehicle driven, and the most recent 3year driving record. The number of
years driving commercial vehicles is not
the precise experience criterion used to
determine an applicant’s acceptability
for an exemption. That determination is
made on the most recent 3 years’
experience before application. That
experience and the type of vehicle
driven is verified by the applicant’s
employer.
The recent 3-year driving record is
verified through the Commercial Driver
License Information System (CDLIS).
This is another criterion used to
determine if an applicant is acceptable.
Total miles driven is not and never has
been a criterion used to decide
acceptability. It is, therefore, not
verified. Mileage is presented as an
indication of overall experience with
CMVs.
Advocates states that the FMCSA
needs to provide an accurate mileage
figure for the recent 3-year period. This
mileage is allegedly needed to
determine whether an applicant’s
crashes and violations are accumulated
at low or high exposure in the 3 years
preceding the application. While this
may be an interesting determination in
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some contexts, it is not relevant to the
determination of the driver’s
acceptability. An applicant is acceptable
relative to a driving record if there are
no crashes for which the driver was
issued a citation nor was a contributing
factor. It is not relevant whether these
types of crashes occur at high or low
exposure. If they are present, the driver
is disqualified.
Advocates states that the FMCSA
should require a minimum average
annual miles driven or total mileage in
order to qualify for an exemption. In
making this statement, Advocates notes
that mileage driven by applicants in the
Federal Register notice ranges from as
little as 37,000 miles over 17 years to
over 3 million miles for two applicants
with 30 and 32 years’ driving
experience respectively. The FMCSA
believes defining a required minimum
mileage for application would enact a
spurious screening standard not
supported by the results of the Vision
Waiver Program. An examination of the
data from the years the program was in
operation shows the annual mileage
driven ranged from as little as 1,000
miles to a maximum of 160,000 miles.
The median annual miles driven was
about 40,000 with 25 percent of the
waiver holders usually driving less than
17,000 miles per year.
Although a minimum mileage
standard is an inappropriate criterion,
FMCSA believes miles driven does have
value in the context of program
evaluation. It is part of the basis for
establishing whether a program has
achieved a ‘‘level of safety that is
equivalent to, or greater than, the level
of safety that would have been
achieved’’ absent from exemption. The
other part of the safety determination is
the number of crashes experienced by
an exempt group where crashes and
mileage are related through a statistical
model named Poisson regression. In this
model, the relationship is given as the
number of crashes (nc) being equal to a
rate (r) times mileage (m) (nc=r × m).
The rate in this model is usually
referred to as the crash rate per some
convenient unit of miles driven (1
million, for example). This rate is the
basis through which the safety level of
a program is determined and miles
driven are an integral part of the
determination. This framework,
however, does not suggest that there is
a minimum level of mileage that could
be arbitrarily used for a screening
decision.
Advocates states that the FMCSA
should consider imposing a sliding
scale standard for drivers with little
driving experience, holding applicants
with relatively low accumulations of
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mileage and years of experience to a
higher safety standard during the 3-year
review period. Advocates based this
view on two factors: (1) Exposure is
frequently used as a means of
determining safety, as when the FMCSA
uses the fatality rate as a measure of
safety progress in truck-related crashes;
and (2) greater driving experience
would mean the drivers have had more
time to adjust to driving with their
vision deficiencies. The FMCSA
believes that imposing a sliding scale
standard, like the minimum mileage
requirement discussed above, would
enact a spurious screening standard,
based on data taken from the Vision
Waiver Program which was shown to
have an acceptable level of safety.
Advocates states that, while the
FMCSA provides some information on
the applicant’s separate experience with
combination tractor-trailers and the
straight trucks, the agency has not
assessed the relative value in terms of
driving experience between driving
these types of vehicle configurations in
predicting safety. This would suggest
that there should be separate experience
specifications for each type of CMV and
that an exemption would be issued for
a particular type of vehicle. Relative to
this, Advocates formerly pointed to
research literature concerned with the
differences between the two types of
trucks. This literature, however, does
not address the operation of the two
types of CMVs in relation to the visual
conditions which are the focus of the
exemption program. The best evidence
of possible disparities in the operation
of the CMV types is taken from the
earlier Vision Waiver Program. The data
taken from the program show that those
driving straight trucks had a crash rate
that was slightly higher than that of the
combination truck operators (2.15
crashes per million miles driven versus
1.76). This difference was not
statistically significant. As a result, it
appears that a consideration of vehicle
type in the application process is not
necessary.
The same conclusion can be drawn in
relation to Advocates’ statement
concerned with driving routines.
Advocates states that the FMCSA has
not made any attempt to distinguish
between the kinds of driving routine the
applicants experienced based on the
type of driving they had done. To
support the need to do this, they
previously noted that the agency
distinguished between five types of
drivers and driving regimens in its May
2000 proposed rule on driver rest and
sleep for safe operations. This proposal
was concerned with driver fatigue.
There is no evidence that there is a
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differential effect of fatigue on drivers
with the vision conditions that are the
focus of exemptions. Consequently, the
FMCSA does not believe there is a need
to issue exemptions for specific types of
driving routine.
Advocates is concerned with the
FMCSA’s use of a 3-year driving record
to screen drivers who apply for
exemptions. They first claim that it is
misleading to report a driving record for
the most recent 3-year period in
conjunction with drivers’ self report of
the total number of years driving. This
is misleading, they state, because the
addition of the unverified total years of
driving gives the impression of a longer
period of safe driving. The FMCSA had
no intention of conveying this type of
interpretation. Total years driving was
reported, as was mileage, to give an
overall indication of experience. For the
purposes of screening, a recent 3-year
driving record is the critical focus
relative to safe driving.
Advocates then argues that a 3-year
record may not be sufficient to
guarantee a level of safety that is
equivalent to or greater than that present
in the absence of an exemption program.
In support of this, it points to the
comment filed by the Department of
Motor Vehicles (DMV) for the State of
California relative to a driver from that
State who applied for an exemption (Mr.
James N. Spencer at 65 FR 20245, April
14, 2000). The California DMV opposed
the granting of an exemption to this
driver because of his crash involvement
and citation record in years 4 and 5
before applying for an exemption. The
FMCSA finds California’s comment
inconsistent with California’s issuance
of an intrastate CDL on July 23, 1997, to
the driver.
The FMCSA believes that using a 3year driving record as a screening
procedure in the application process is
adequate to ensure the required level of
safety. In John C. Anderson v. Federal
Highway Administration, No. 98–3739
(8th Cir. May 1, 2000), the United States
Court of Appeals for the Eighth Circuit
affirmed the agency’s 3-year
requirement of driving with a vision
impairment before being eligible for an
exemption. This screening period was
used in the Vision Waiver Program
which was shown to have a level of
safety that was better than the national
norm. Moreover, as Advocates correctly
points out, not all States maintain
driving records for more than 3 years.
Requiring some drivers to submit 3-year
records and others to submit ones for a
longer duration, as Advocates suggests,
would be arbitrary and capricious.
In another comment, Advocates
suggests that the agency is sanitizing the
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information in the driving record to
justify granting vision exemptions.
Specific information provided on the
crashes and violations of applicants is a
presentation of the facts as we know
them and not any attempt to downplay
or explain away crashes and citations as
Advocates suggests.
Advocates also comments that the
opinions of ophthalmologists and
optometrists are not persuasive and
should not be relied on by the agency.
The opinions of the vision specialists on
whether a driver has sufficient vision to
perform the tasks associated with
operating a CMV are made only after a
thorough vision examination including
formal field of vision testing to identify
any medical condition which may
compromise the visual field such as
glaucoma, stroke or brain tumor, and
not just based on a Snellen test. The
FMCSA believes it can rely on medical
opinions regarding whether a driver’s
visual capacity is sufficient to enable
safe operations. The medical
information is combined with
information on experience and driving
records in the agency’s overall
determination of whether exempting
applicants from the vision standard is
likely to achieve a level of safety equal
to that existing without the exemption.
In regard to Advocates’ second issue
regarding what inferences can be drawn
from the results of the waiver study
program, Advocates suggests that the
agency cannot base the present
proceedings on the results generated by
the waiver study program because a
valid research model was not used. In
response to this concern, we note that
the validity of research designs is a
quality with many dimensions which
cannot be accepted or dismissed in a
blanket, simplistic statement. Validity
can be concerned with the
measurements used, the manner in
which the study is performed (internal
validity), or the application of the
results for a broader inference (external
validity). The approach used by the
FMCSA for the assessment of risk is a
valid design that has been used in
epidemiology for studies of
occupational health. These studies
compare a treated or exposed group
(such as the drivers who hold waivers)
to a control group that is large and
represents outcomes for the nation as a
whole (e.g., national mortality rates or
truck crash rates). This design has been
used to investigate risk relative to the
hazards of asbestos and benzene with
regulatory decisions based on the
outcomes.
While the design has been
successfully used in critical risk areas,
its application has been challenged in
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adversarial proceedings. Most of the
criticism has focused on the data used
in the models (measurement validity).
In these circumstances, it has been
argued that exposure to hazards is not
always clearly measured because
recordkeeping is not accurate or
complete. Criticism has also focused on
the poor measurement of outcomes (e.g.
the occurrence of disease or vehicle
crashes). Threats to the validity of
measurement were not a problem in the
waiver program’s risk assessment.
Exposure, for example, in the
assessment is manifested by
participation in the waiver program (as
in an exposure to a medical treatment or
an employment condition) and through
vehicle miles traveled (as exposure to
risk). The measurement of participation
in the program had no error by virtue of
the required recordkeeping. Exposure to
risk by vehicle miles traveled was
measured by self-report and could, of
course, contain errors. However, since
reports were made on a monthly basis,
it was not expected that the reporting
for these short periods would contain
significant systematic error over the life
of the program.
The measurement of risk outcomes
was determined through crash
occurrence. Crash occurrence was
verified in multiple ways through selfreport (a program requirement), the
Commercial Driver License Information
System (CDLIS), State driving records,
and police crash reports. As a result it
is believed that the research approach
used in the waiver program did not
suffer flaws relative to the validity of
measurement.
Criticism of internal validity was
addressed in a sensitivity analysis. The
original design proposed to use a
sample of CMV operators without vision
deficiencies as a comparison group.
While the design was appealing, it had
potential for flaws relative to internal
validity. Because the vision deficiencies
studied were a fixed condition, the
drivers could not be randomly assigned
to the waiver and comparison groups as
is done in clinical trials, for example.
Moreover, a comparison group could
not be assembled from the general
population of CMV operators due to a
lack of volunteers. Instead, the
information needed for comparison was
taken from the General Estimates
System (GES). GES is an annual survey
of police crash reports sponsored by the
National Highway Traffic Safety
Administration that is based on sound
statistical sampling principles.
Estimates derived from the survey
(national crash rates) represent national
crash rate norms for large trucks.
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16891
While the national norms in the GES
data are effective for a comparison at the
national level, they raise questions in
relation to internal validity. When
random assignment to the treatment and
comparison groups cannot be used,
internal validity can be questioned. The
necessary approach to obtaining valid
results, in this case, is to thoroughly
examine a study for bias and make
adjustments as necessary. To do this,
additional information (e.g.
demographic and operational data) is
needed for both the treatment and
comparison groups to determine if the
samples are balanced. GES did not have
these data, so internal validity could be
questioned because adjustments could
not be made. Under these
circumstances, bias, if it existed, would
remain hidden.
To address this question, the agency
performed a sensitivity analysis to
assess the impact of possible hidden
bias (Rosenbaum, P.R. Observational
Studies, New York, Springer-Verlag
1995). The analysis examined outcomes
under various levels of possible hidden
bias and the results showed that the
comparison with GES crash rates is
insensitive to hidden bias. The results of
this sensitivity analysis, filed in docket
number FMCSA–99–5578, provide
evidence to support the internal validity
of the comparison to GES data.
The remaining facet of validity that is
of concern for the waiver program
assessment involves its relevance in the
regulatory setting (external validity).
The structure of these types of
epidemiological investigations provides
a high level of external validity. Being
able to compare outcomes to a national
norm places the focus in proper
perspective for regulatory matters. This,
of course, is their strength relative to the
waiver program where the GES crash
rates represent a national safety norm.
Based on the various assessments, it
is clear that the results of the waiver
program risk analysis are valid. The
measurement of exposure and risk
outcomes was conducted with virtually
no error. The external validity is
ensured because a national norm is the
focus of comparison and, based on the
sensitivity analysis, the internal validity
is substantiated.
Although the foregoing discussion
successfully addresses Advocates’
concerns about validity, there is another
issue that was engaged to complete the
scrutiny of the waiver program risk
assessment. A full examination would
consider all facets of how results are
obtained. In particular, obtaining valid
results that point to a clear causal
connection between an action and an
outcome rests on ruling out other
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Federal Register / Vol. 70, No. 62 / Friday, April 1, 2005 / Notices
influences on the outcome. While this
appears to be largely accomplished
based on an examination of the various
types of validity, there remained an
additional potential threat to the
validity of the results. Relative to this,
it had been argued that the drivers in
the various waiver programs have lower
crash rates because they were aware of
being monitored, and monitoring is a
strong motivation to exercise care. To
address this possible threat, the agency
conducted a follow-up assessment after
the waived drivers were given
grandfather rights in March 1996 and
were no longer monitored. Conducted in
June 1998, the agency made an
assessment of the drivers’ crash
experience for the period from March to
December 1996. The results, on file in
docket FMCSA–99–5578, showed that
the drivers who had been in the
program continued to have a crash rate
that was lower than the national norm.
In regard to their third issue,
Advocates believes that the agency
misinterpreted the current law on
exemptions by considering it slightly
more lenient than the previous law.
Regardless of how one characterizes the
new exemption language, the FMCSA
strictly adheres to the statutory standard
for granting an exemption. In short, we
determine whether granting the
exemption is likely to achieve an equal
or greater level of safety than exists
without the exemption.
Advocates’ final point suggesting that
the Supreme Court decision, Albertsons,
Inc. v. Kirkingburg, 119 S.Ct. 2162 (June
22, 1999) affects the legal validity of
vision exemptions is without support.
Vision exemptions are granted under
FMCSA’s statutory authority and
standards, which were not at issue in
the case.
Conclusion
Based upon its evaluation of the 28
exemption applications, the FMCSA
exempts Eddie Alejandro, Eldred S.
Boggs, David F. Breuer, James T. Butler,
Roger K. Cox, Richard S. Cummings,
Joseph A. Dean, Donald P. Dodson, Jr.,
William H. Goss, Eric W. Gray, James K.
Holmes, Daniel L. Jacobs, Jose M.
Limon-Alvarado, Robert S. Loveless, Jr.,
Eugene R. Lydick, John W. Montgomery,
Danny R. Pickelsimer, Zeljko Popovac,
Juan Manuel M. Rosas, Francis L.
Savell, Richie J. Schwendy, David M.
Stout, Artis Suitt, Gregory E. Thompson,
Kerry W. VanStory, Harry S. Warren,
Carl L. Wells, and Prince E. Williams
from the vision requirement in 49 CFR
391.41(b)(10), subject to the
requirements cited above (49 CFR
391.64(b)).
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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: March 28, 2005.
Rose A. McMurray,
Associate Administrator, Policy and Program
Development.
[FR Doc. 05–6476 Filed 3–31–05; 8:45 am]
BILLING CODE 4910–EX–P
DEPARTMENT OF TRANSPORTATION
the hearing impaired is available
through the Federal Information Relay
Service (FIRS) at 1–800–877–8339.)
SUPPLEMENTARY INFORMATION:
Additional information is contained in
the Board’s decision. To purchase a
copy of the full decision, write to, email, or call: ASAP Document
Solutions, 9332 Annapolis Rd., Suite
103, Lanham, MD 20706; e-mail
asapdc@verizon.net; telephone (202)
306–4004. (Assistance for the hearing
impaired is available through FIRS at 1–
800–877–8339.)
Board decisions and notices are
available on our Web site at https://
www.stb.dot.gov.
Decided: March 24, 2005.
By the Board, Chairman Nober, Vice
Chairman Buttrey, and Commissioner
Mulvey.
Vernon A. Williams,
Secretary.
[FR Doc. 05–6277 Filed 3–31–05; 8:45 am]
BILLING CODE 4915–01–P
Surface Transportation Board
[STB Finance Docket No. 34631]
DEPARTMENT OF THE TREASURY
Union Pacific Railroad Company—
Acquisition and Operation
Exemption—Line of Denver Terminal
Railroad Company, d/b/a Denver Rock
Island Railroad
Submission for OMB Review;
Comment Request
AGENCY:
Surface Transportation Board,
DOT.
ACTION:
Notice of exemption.
SUMMARY: Under 49 U.S.C. 10502, the
Board is granting a petition for
exemption from the prior approval
requirements of 49 U.S.C. 11323–25 for
Union Pacific Railroad Company to
acquire and operate approximately 3.23
miles of rail line of the Denver Terminal
Railroad Company, d/b/a Denver Rock
Island Railroad (DRIR), extending from
DRIR milepost 0.72 near Sandown to
DRIR milepost 3.95 at Belt Junction, in
Denver, CO, subject to standard labor
protective conditions.
DATES: The exemption will be effective
on May 1, 2005. Petitions to stay must
be filed by April 18, 2005. Petitions to
reopen must be filed by April 26, 2005.
ADDRESSES: Send an original and 10
copies of all pleadings referring to STB
Finance Docket No. 34631 to: Surface
Transportation Board, 1925 K Street,
NW., Washington, DC 20423–0001. In
addition, send one copy of all pleadings
to petitioner’s representative, Robert T.
Opal, General Commerce Counsel, 1400
Douglas Street, Stop 1580, Omaha, NE
68179–0001.
FOR FURTHER INFORMATION CONTACT: Eric
S. Davis, (202) 565–1608. (Assistance for
PO 00000
Frm 00102
Fmt 4703
Sfmt 4703
March 24, 2005.
The Department of the Treasury has
submitted the following public
information collection requirement(s) to
OMB for review and clearance under the
Paperwork Reduction Act of 1995,
Public Law 104–13. Copies of the
submission(s) may be obtained by
calling the Treasury Bureau Clearance
Officer listed. Comments regarding this
information collection should be
addressed to the OMB reviewer listed
and to the Treasury Department
Clearance Officer, Department of the
Treasury, Room 11000, 1750
Pennsylvania Avenue, NW.,
Washington, DC 20220.
DATES: Written comments should be
received on or before May 2, 2005 to be
assured of consideration.
Financial Management Service (FMS)
OMB Number: 1510–0047.
Form Number: TFS 2211.
Type of Review: Extension.
Title: List of Data (A) and List of Data
(B).
Description: Information from
insurance companies to provide
Treasury a basis to determine
acceptability of companies applying for
a Certificate of Authority to write or
reinsure Federal surety bonds or an
Admitted Reinsurer (not on excess risks
to U.S.).
Respondents: Business or other forprofit.
E:\FR\FM\01APN1.SGM
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]]>Agencies
[Federal Register Volume 70, Number 62 (Friday, April 1, 2005)]
[Notices]
[Pages 16887-16892]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-6476]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[FMCSA Docket No. FMCSA-2005-20027]
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 28 individuals from
the vision requirement in the Federal Motor Carrier Safety Regulations
(FMCSRs). The exemptions will enable these individuals to qualify as
drivers of commercial motor vehicles (CMVs) in interstate commerce
without meeting the vision standard prescribed in 49 CFR 391.41(b)(10).
DATES: April 1, 2005.
FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Office of Bus and
Truck Standards and Operations, (202) 366-4001, FMCSA, Department of
Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001.
Office hours are from 8 a.m. to 5 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: https://dmses.dot.gov.
Background
On January 14, 2005, the FMCSA published a notice of receipt of
[[Page 16888]]
exemption applications from 29 individuals, and requested comments from
the public (70 FR 2701). The 29 individuals petitioned the FMCSA for
exemptions from the vision requirement in 49 CFR 391.41(b)(10), which
applies to drivers of CMVs in interstate commerce. They are: Eddie
Alejandro, Eldred S. Boggs, David F. Breuer, James T. Butler, Roger K.
Cox, Richard S. Cummings, Joseph A. Dean, Donald P. Dodson, Jr.,
William H. Goss, Eric W. Gray, James K. Holmes, Daniel L. Jacobs, Jose
M. Limon-Alvarado, Robert S. Loveless, Jr., Eugene R. Lydick, John W.
Montgomery, Danny R. Pickelsimer, Zeljko Popovac, Juan Manuel M. Rosas,
Francis L. Savell, Richie J. Schwendy, David M. Stout, Artis Suitt,
Gregory E. Thompson, Kerry W. VanStory, Harry S. Warren, Carl L. Wells,
Prince E. Williams, and Keith L. Wraight.
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 29 applications on their
merits and made a determination to grant exemptions to 28 of those
persons who applied for them. The comment period closed on February 14,
2005. One comment was received, and its contents were carefully
considered by the FMCSA in reaching the final decision to grant the
exemptions.
The FMCSA has not made a decision on the application of Keith L.
Wraight. Subsequent to the publication of the notice of applications
and request for comments on January 14, 2005 (70 FR 2701), the agency
received additional information from its check of his motor vehicle
record, and we are evaluating that information. A decision on this
application will be made in the future.
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 agency has undertaken studies to determine if this
vision standard should be amended. The final report from our 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, FMCSA-98-
4334.) The panel's conclusion supports the agency's view that the
present visual acuity 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 28 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 12 of the applicants were either born with their vision impairments
or have had them since childhood. The 12 individuals who sustained
their vision conditions as adults have had them for periods ranging
from 13 to 46 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.
While possessing a valid CDL or non-CDL, these 28 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 30
years. In the past 3 years, two of the drivers have had convictions for
traffic violations. One of these convictions was for speeding and one
was for ``failure to obey traffic sign.'' None of the drivers was
involved in a crash.
The qualifications, experience, and medical condition of each
applicant were stated and discussed in detail in the January 14, 2005,
notice (70 FR 2701). Since there were no substantial 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 on January 14,
2005 (70 FR 2701).
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 crashes and traffic violations.
Copies of the studies may be found at docket number FMCSA-98-3637.
We believe we can properly apply the principle to monocular
drivers, because data from a former FMCSA waiver study program clearly
demonstrates that the driving performance of experienced monocular
drivers in the program is better than that of all CMV drivers
collectively. (See 61 FR 13338 and 13345; March 26, 1996.) Because
experienced monocular drivers with
[[Page 16889]]
good driving records in the waiver program demonstrated their ability
to drive safely, this fact 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 crash 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 crash proneness from crash 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 crashes. (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 crash 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 28 applicants receiving an exemption, we note that the applicants
have had no crashes and only two traffic violations 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 required because
distances between them are more compact. 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 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 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 is granting
the exemptions for the 2-year period allowed by 49 U.S.C. 31315 and
31136(e) to 28 of the 29 applicants listed in the notice of January 14,
2005 (70 FR 2701).
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 28 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 one comment in this proceeding. The comment was
considered and is discussed below.
Advocates for Highway and Auto Safety (Advocates) expresses
continued opposition to the FMCSA's policy to grant exemptions from the
FMCSRs, 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 1999 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). The FMCSA's
responses are restated below.
On the first issue regarding the manner in which the FMCSA presents
driver information to the public and makes safety determinations,
Advocates questions how various aspects of exemption application
information are verified. In particular, Advocates states that the
public is not advised about outside verification of each applicant's
miles driven, the number of years driving commercial vehicles, the type
of vehicle driven, and the most recent 3-year driving record. The
number of years driving commercial vehicles is not the precise
experience criterion used to determine an applicant's acceptability for
an exemption. That determination is made on the most recent 3 years'
experience before application. That experience and the type of vehicle
driven is verified by the applicant's employer.
The recent 3-year driving record is verified through the Commercial
Driver License Information System (CDLIS). This is another criterion
used to determine if an applicant is acceptable. Total miles driven is
not and never has been a criterion used to decide acceptability. It is,
therefore, not verified. Mileage is presented as an indication of
overall experience with CMVs.
Advocates states that the FMCSA needs to provide an accurate
mileage figure for the recent 3-year period. This mileage is allegedly
needed to determine whether an applicant's crashes and violations are
accumulated at low or high exposure in the 3 years preceding the
application. While this may be an interesting determination in
[[Page 16890]]
some contexts, it is not relevant to the determination of the driver's
acceptability. An applicant is acceptable relative to a driving record
if there are no crashes for which the driver was issued a citation nor
was a contributing factor. It is not relevant whether these types of
crashes occur at high or low exposure. If they are present, the driver
is disqualified.
Advocates states that the FMCSA should require a minimum average
annual miles driven or total mileage in order to qualify for an
exemption. In making this statement, Advocates notes that mileage
driven by applicants in the Federal Register notice ranges from as
little as 37,000 miles over 17 years to over 3 million miles for two
applicants with 30 and 32 years' driving experience respectively. The
FMCSA believes defining a required minimum mileage for application
would enact a spurious screening standard not supported by the results
of the Vision Waiver Program. An examination of the data from the years
the program was in operation shows the annual mileage driven ranged
from as little as 1,000 miles to a maximum of 160,000 miles. The median
annual miles driven was about 40,000 with 25 percent of the waiver
holders usually driving less than 17,000 miles per year.
Although a minimum mileage standard is an inappropriate criterion,
FMCSA believes miles driven does have value in the context of program
evaluation. It is part of the basis for establishing whether a program
has achieved a ``level of safety that is equivalent to, or greater
than, the level of safety that would have been achieved'' absent from
exemption. The other part of the safety determination is the number of
crashes experienced by an exempt group where crashes and mileage are
related through a statistical model named Poisson regression. In this
model, the relationship is given as the number of crashes (nc) being
equal to a rate (r) times mileage (m) (nc=r x m). The rate in this
model is usually referred to as the crash rate per some convenient unit
of miles driven (1 million, for example). This rate is the basis
through which the safety level of a program is determined and miles
driven are an integral part of the determination. This framework,
however, does not suggest that there is a minimum level of mileage that
could be arbitrarily used for a screening decision.
Advocates states that the FMCSA should consider imposing a sliding
scale standard for drivers with little driving experience, holding
applicants with relatively low accumulations of mileage and years of
experience to a higher safety standard during the 3-year review period.
Advocates based this view on two factors: (1) Exposure is frequently
used as a means of determining safety, as when the FMCSA uses the
fatality rate as a measure of safety progress in truck-related crashes;
and (2) greater driving experience would mean the drivers have had more
time to adjust to driving with their vision deficiencies. The FMCSA
believes that imposing a sliding scale standard, like the minimum
mileage requirement discussed above, would enact a spurious screening
standard, based on data taken from the Vision Waiver Program which was
shown to have an acceptable level of safety.
Advocates states that, while the FMCSA provides some information on
the applicant's separate experience with combination tractor-trailers
and the straight trucks, the agency has not assessed the relative value
in terms of driving experience between driving these types of vehicle
configurations in predicting safety. This would suggest that there
should be separate experience specifications for each type of CMV and
that an exemption would be issued for a particular type of vehicle.
Relative to this, Advocates formerly pointed to research literature
concerned with the differences between the two types of trucks. This
literature, however, does not address the operation of the two types of
CMVs in relation to the visual conditions which are the focus of the
exemption program. The best evidence of possible disparities in the
operation of the CMV types is taken from the earlier Vision Waiver
Program. The data taken from the program show that those driving
straight trucks had a crash rate that was slightly higher than that of
the combination truck operators (2.15 crashes per million miles driven
versus 1.76). This difference was not statistically significant. As a
result, it appears that a consideration of vehicle type in the
application process is not necessary.
The same conclusion can be drawn in relation to Advocates'
statement concerned with driving routines. Advocates states that the
FMCSA has not made any attempt to distinguish between the kinds of
driving routine the applicants experienced based on the type of driving
they had done. To support the need to do this, they previously noted
that the agency distinguished between five types of drivers and driving
regimens in its May 2000 proposed rule on driver rest and sleep for
safe operations. This proposal was concerned with driver fatigue. There
is no evidence that there is a differential effect of fatigue on
drivers with the vision conditions that are the focus of exemptions.
Consequently, the FMCSA does not believe there is a need to issue
exemptions for specific types of driving routine.
Advocates is concerned with the FMCSA's use of a 3-year driving
record to screen drivers who apply for exemptions. They first claim
that it is misleading to report a driving record for the most recent 3-
year period in conjunction with drivers' self report of the total
number of years driving. This is misleading, they state, because the
addition of the unverified total years of driving gives the impression
of a longer period of safe driving. The FMCSA had no intention of
conveying this type of interpretation. Total years driving was
reported, as was mileage, to give an overall indication of experience.
For the purposes of screening, a recent 3-year driving record is the
critical focus relative to safe driving.
Advocates then argues that a 3-year record may not be sufficient to
guarantee a level of safety that is equivalent to or greater than that
present in the absence of an exemption program. In support of this, it
points to the comment filed by the Department of Motor Vehicles (DMV)
for the State of California relative to a driver from that State who
applied for an exemption (Mr. James N. Spencer at 65 FR 20245, April
14, 2000). The California DMV opposed the granting of an exemption to
this driver because of his crash involvement and citation record in
years 4 and 5 before applying for an exemption. The FMCSA finds
California's comment inconsistent with California's issuance of an
intrastate CDL on July 23, 1997, to the driver.
The FMCSA believes that using a 3-year driving record as a
screening procedure in the application process is adequate to ensure
the required level of safety. In John C. Anderson v. Federal Highway
Administration, No. 98-3739 (8th Cir. May 1, 2000), the United States
Court of Appeals for the Eighth Circuit affirmed the agency's 3-year
requirement of driving with a vision impairment before being eligible
for an exemption. This screening period was used in the Vision Waiver
Program which was shown to have a level of safety that was better than
the national norm. Moreover, as Advocates correctly points out, not all
States maintain driving records for more than 3 years. Requiring some
drivers to submit 3-year records and others to submit ones for a longer
duration, as Advocates suggests, would be arbitrary and capricious.
In another comment, Advocates suggests that the agency is
sanitizing the
[[Page 16891]]
information in the driving record to justify granting vision
exemptions. Specific information provided on the crashes and violations
of applicants is a presentation of the facts as we know them and not
any attempt to downplay or explain away crashes and citations as
Advocates suggests.
Advocates also comments that the opinions of ophthalmologists and
optometrists are not persuasive and should not be relied on by the
agency. The opinions of the vision specialists on whether a driver has
sufficient vision to perform the tasks associated with operating a CMV
are made only after a thorough vision examination including formal
field of vision testing to identify any medical condition which may
compromise the visual field such as glaucoma, stroke or brain tumor,
and not just based on a Snellen test. The FMCSA believes it can rely on
medical opinions regarding whether a driver's visual capacity is
sufficient to enable safe operations. The medical information is
combined with information on experience and driving records in the
agency's overall determination of whether exempting applicants from the
vision standard is likely to achieve a level of safety equal to that
existing without the exemption.
In regard to Advocates' second issue regarding what inferences can
be drawn from the results of the waiver study program, Advocates
suggests that the agency cannot base the present proceedings on the
results generated by the waiver study program because a valid research
model was not used. In response to this concern, we note that the
validity of research designs is a quality with many dimensions which
cannot be accepted or dismissed in a blanket, simplistic statement.
Validity can be concerned with the measurements used, the manner in
which the study is performed (internal validity), or the application of
the results for a broader inference (external validity). The approach
used by the FMCSA for the assessment of risk is a valid design that has
been used in epidemiology for studies of occupational health. These
studies compare a treated or exposed group (such as the drivers who
hold waivers) to a control group that is large and represents outcomes
for the nation as a whole (e.g., national mortality rates or truck
crash rates). This design has been used to investigate risk relative to
the hazards of asbestos and benzene with regulatory decisions based on
the outcomes.
While the design has been successfully used in critical risk areas,
its application has been challenged in adversarial proceedings. Most of
the criticism has focused on the data used in the models (measurement
validity). In these circumstances, it has been argued that exposure to
hazards is not always clearly measured because recordkeeping is not
accurate or complete. Criticism has also focused on the poor
measurement of outcomes (e.g. the occurrence of disease or vehicle
crashes). Threats to the validity of measurement were not a problem in
the waiver program's risk assessment. Exposure, for example, in the
assessment is manifested by participation in the waiver program (as in
an exposure to a medical treatment or an employment condition) and
through vehicle miles traveled (as exposure to risk). The measurement
of participation in the program had no error by virtue of the required
recordkeeping. Exposure to risk by vehicle miles traveled was measured
by self-report and could, of course, contain errors. However, since
reports were made on a monthly basis, it was not expected that the
reporting for these short periods would contain significant systematic
error over the life of the program.
The measurement of risk outcomes was determined through crash
occurrence. Crash occurrence was verified in multiple ways through
self-report (a program requirement), the Commercial Driver License
Information System (CDLIS), State driving records, and police crash
reports. As a result it is believed that the research approach used in
the waiver program did not suffer flaws relative to the validity of
measurement.
Criticism of internal validity was addressed in a sensitivity
analysis. The original design proposed to use a sample of CMV operators
without vision deficiencies as a comparison group. While the design was
appealing, it had potential for flaws relative to internal validity.
Because the vision deficiencies studied were a fixed condition, the
drivers could not be randomly assigned to the waiver and comparison
groups as is done in clinical trials, for example. Moreover, a
comparison group could not be assembled from the general population of
CMV operators due to a lack of volunteers. Instead, the information
needed for comparison was taken from the General Estimates System
(GES). GES is an annual survey of police crash reports sponsored by the
National Highway Traffic Safety Administration that is based on sound
statistical sampling principles. Estimates derived from the survey
(national crash rates) represent national crash rate norms for large
trucks.
While the national norms in the GES data are effective for a
comparison at the national level, they raise questions in relation to
internal validity. When random assignment to the treatment and
comparison groups cannot be used, internal validity can be questioned.
The necessary approach to obtaining valid results, in this case, is to
thoroughly examine a study for bias and make adjustments as necessary.
To do this, additional information (e.g. demographic and operational
data) is needed for both the treatment and comparison groups to
determine if the samples are balanced. GES did not have these data, so
internal validity could be questioned because adjustments could not be
made. Under these circumstances, bias, if it existed, would remain
hidden.
To address this question, the agency performed a sensitivity
analysis to assess the impact of possible hidden bias (Rosenbaum, P.R.
Observational Studies, New York, Springer-Verlag 1995). The analysis
examined outcomes under various levels of possible hidden bias and the
results showed that the comparison with GES crash rates is insensitive
to hidden bias. The results of this sensitivity analysis, filed in
docket number FMCSA-99-5578, provide evidence to support the internal
validity of the comparison to GES data.
The remaining facet of validity that is of concern for the waiver
program assessment involves its relevance in the regulatory setting
(external validity). The structure of these types of epidemiological
investigations provides a high level of external validity. Being able
to compare outcomes to a national norm places the focus in proper
perspective for regulatory matters. This, of course, is their strength
relative to the waiver program where the GES crash rates represent a
national safety norm.
Based on the various assessments, it is clear that the results of
the waiver program risk analysis are valid. The measurement of exposure
and risk outcomes was conducted with virtually no error. The external
validity is ensured because a national norm is the focus of comparison
and, based on the sensitivity analysis, the internal validity is
substantiated.
Although the foregoing discussion successfully addresses Advocates'
concerns about validity, there is another issue that was engaged to
complete the scrutiny of the waiver program risk assessment. A full
examination would consider all facets of how results are obtained. In
particular, obtaining valid results that point to a clear causal
connection between an action and an outcome rests on ruling out other
[[Page 16892]]
influences on the outcome. While this appears to be largely
accomplished based on an examination of the various types of validity,
there remained an additional potential threat to the validity of the
results. Relative to this, it had been argued that the drivers in the
various waiver programs have lower crash rates because they were aware
of being monitored, and monitoring is a strong motivation to exercise
care. To address this possible threat, the agency conducted a follow-up
assessment after the waived drivers were given grandfather rights in
March 1996 and were no longer monitored. Conducted in June 1998, the
agency made an assessment of the drivers' crash experience for the
period from March to December 1996. The results, on file in docket
FMCSA-99-5578, showed that the drivers who had been in the program
continued to have a crash rate that was lower than the national norm.
In regard to their third issue, Advocates believes that the agency
misinterpreted the current law on exemptions by considering it slightly
more lenient than the previous law. Regardless of how one characterizes
the new exemption language, the FMCSA strictly adheres to the statutory
standard for granting an exemption. In short, we determine whether
granting the exemption is likely to achieve an equal or greater level
of safety than exists without the exemption.
Advocates' final point suggesting that the Supreme Court decision,
Albertsons, Inc. v. Kirkingburg, 119 S.Ct. 2162 (June 22, 1999) affects
the legal validity of vision exemptions is without support. Vision
exemptions are granted under FMCSA's statutory authority and standards,
which were not at issue in the case.
Conclusion
Based upon its evaluation of the 28 exemption applications, the
FMCSA exempts Eddie Alejandro, Eldred S. Boggs, David F. Breuer, James
T. Butler, Roger K. Cox, Richard S. Cummings, Joseph A. Dean, Donald P.
Dodson, Jr., William H. Goss, Eric W. Gray, James K. Holmes, Daniel L.
Jacobs, Jose M. Limon-Alvarado, Robert S. Loveless, Jr., Eugene R.
Lydick, John W. Montgomery, Danny R. Pickelsimer, Zeljko Popovac, Juan
Manuel M. Rosas, Francis L. Savell, Richie J. Schwendy, David M. Stout,
Artis Suitt, Gregory E. Thompson, Kerry W. VanStory, Harry S. Warren,
Carl L. Wells, and Prince E. Williams from the vision requirement in 49
CFR 391.41(b)(10), subject to the requirements cited above (49 CFR
391.64(b)).
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: March 28, 2005.
Rose A. McMurray,
Associate Administrator, Policy and Program Development.
[FR Doc. 05-6476 Filed 3-31-05; 8:45 am]
BILLING CODE 4910-EX-P
