Qualification of Drivers; Waiver Application; Vision

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-97-2625]

Qualification of Drivers; Waiver Application; Vision

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of final disposition.

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SUMMARY: The FHWA announces its decision to grant the petition of David

R. Rauenhorst for a waiver of the vision requirement contained in 49

CFR 391.41(b)(10).

EFFECTIVE DATE: This decision is effective on Jnauary 9, 1998.

FOR FURTHER INFORMATION CONTACT: Ms. Sandra Zywokarte, Office of Motor

Carrier Research and Standards, (202) 366-1790, or Ms. Judy Rutledge,

Office of Chief Counsel, (202) 366-0834, Federal Highway

Administration, Department of Transportation, 400 Seventh Street, SW.,

Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m.,

e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: David R. Rauenhorst petitioned the FHWA for

a waiver of the vision requirement in 49 CFR 391.41(b)(10), which

applies to drivers of commercial motor vehicles in interstate commerce.

The FHWA evaluated Mr. Rauenhorst's application on its merits, as

required by the decision in Rauenhorst v. United States Department of

Transportation, Federal Highway Administration, 95 F.3d 715 (8th Cir.

1996), and made a preliminary determination that the waiver should be

granted. On July 2, 1997, the agency published notice of its

preliminary determination and requested comments from the public. (62

FR 35881). The

[[Page 1525]]

comment period closed on August 1, 1997. Four comments were received,

and their contents were carefully considered by the FHWA in reaching

its final decision to grant Mr. Rauenhorst's petition for a waiver of

the vision requirement in 49 CFR 391.41(b)(10).

Mr. Rauenhorst's Vision and Driving Experience

The vision requirement in 49 CFR 391.41(b)(10) provides:

A person is physically qualified to drive a commercial motor

vehicle if that person has distant visual acuity of at least 20/40

(Snellen) in each eye without corrective lenses or visual acuity

separately corrected to 20/40 (Snellen) or better with corrective

lenses, distant binocular acuity of at least 20/40 (Snellen) in both

eyes with or without corrective lenses, field of vision of at least

70 deg. in the horizontal Meridian in each eye, and the ability to

recognize the colors of traffic signals and devices showing standard

red, green, and amber.

Mr. Rauenhorst is unable to meet the vision standard because a non-

driving accident in 1976 caused him to sustain a retinal detachment in

his right eye. As a result, vision in his right eye is limited to

finger counting, and the capability of seeing movement, colors, and

gross objects. Medical reports for 1995, 1996, and 1997 indicate that

Mr. Rauenhorst's eye condition is non-degenerative and that the vision

in the right eye is stable. Moreover, Mr. Rauenhorst has had 20/20

corrected vision in his left eye for the last three years, and, in his

doctor's opinion, can safely operate any motor vehicle.

Whether Mr. Rauenhorst can safely operate a commercial motor

vehicle is the critical question in this proceeding. Under 49 U.S.C.

31136(e), the FHWA may waive application of the vision standard to Mr.

Rauenhorst only if the agency determines that the waiver is consistent

with the public interest and the safe operation of commercial motor

vehicles. In making that determination, the FHWA has considered not

only the medical evaluation of Mr. Rauenhorst's vision but also his

driving record and experience. Mr. Rauenhorst has been self-employed as

a commercial truck driver since 1974. During this time, he has driven

tractor-trailer combinations more than 2 million miles to transport

sugar beets and bulk commodities for seed companies. In the last ten

years, with his limited vision, he has driven 1 million miles without

an accident. Most significantly, his driving record for the past 3

years reflects no traffic violations as well as no accidents. This

driving history demonstrates that Mr. Rauenhorst's vision deficiency

has not compromised his ability to safely operate a commercial vehicle

and that he has adapted his driving techniques to accommodate the

limited vision in his right eye.

Mr. Rauenhorst's ability to operate a commercial vehicle is also

evidenced by his possession of a valid commercial driver's license

(CDL). Before issuing a CDL, States subject the driver to knowledge and

performance tests designed to evaluate the driver's qualifications to

drive the vehicle to be operated. Mr. Rauenhorst satisfied the testing

standards for the State of Minnesota and holds a current CDL that was

issued on April 10, 1995 and is valid until February 22, 1999. The

current license was preceded by another Minnesota CDL which was

effective from January 31, 1991, until February 22, 1995. By meeting

his State's licensing requirements, Mr. Rauenhorst demonstrated his

ability to operate a commercial vehicle with his limited vision to the

satisfaction of the State.

Basis for Waiver Determination

To waive application of 49 CFR 391.41(b)(10) to Mr. Rauenhorst, the

FHWA must find the waiver to be consistent with the public interest and

the safe operation of commercial motor vehicles. (49 U.S.C. 31136(e)).

We find that granting the waiver is consistent with the public

interest. Mr. Rauenhorst has earned his living as a commercial truck

driver since 1974, notwithstanding a vision deficiency which

disqualifies him from operating a vehicle in interstate commerce. This

waiver will allow him to broaden his employment opportunities by

enabling him to operate commercial vehicles in interstate commerce. As

a result, the economic viability of his business may be enhanced. In

that regard, the waiver will allow the employment of a person with a

disability, which is consistent with the public policies expressed in

the Rehabilitation Act of 1973 and the Americans with Disabilities Act

of 1992.

The waiver is also consistent with the safe operation of commercial

motor vehicles. In reaching this determination, the FHWA has relied

upon research studies designed to correlate past and future driving

performance. Copies of the several studies relied upon here have been

added to the docket.

The first major research in this area was done in England by

Greenwood and Yule in 1920. Subsequent studies, building on that model,

concluded that accident rates for the same individual exposed to

certain risks for two different time periods vary only slightly. (See

Bates and Neyman, University of California Publications in Statistics,

April 1952.) Other studies demonstrated theories of predicting accident

proneness from accident history coupled with other factors. These

factors, such as age, sex, geographic location, mileage driven and

conviction history, are used every day by insurance companies and motor

vehicle bureaus to predict the probability of an individual

experiencing future accidents. (See Weber, Donald C., ``Accident Rate

Potential: An Application of Multiple Regression Analysis of a Poisson

Process,'' Journal of American Statistical Association, June, 1971). A

1964 California Driver Record Study prepared by the California

Department of Motor Vehicles concluded that the best overall accident

predictor for both concurrent and nonconcurrent events is the number of

single convictions. This California study used three consecutive years

of data, comparing the experience of drivers in the first two years

with the experience of those same drivers the final year.

Results of these studies support the principle that the best

predictor of future performance by a driver is his past record of

accidents and traffic violations. Mr. Rauenhorst's driving record

reflects that he has had no accidents or traffic violations in the past

three years. He established this record while driving with the limited

vision caused by the retinal detachment in 1976, a fact which

demonstrates that he has adapted his driving skills to accommodate his

eye condition. Because Mr. Rauenhorst's driving history is the best

predictor of future performance, absent any information indicating any

reduction in visual capacity or other factor essential to the driving

task, the FHWA has determined that his ability to drive safely can be

projected into the future and that waiving application of the vision

standard is consistent with the safe operation of commercial motor

vehicles.

In granting this waiver, the FHWA is mindful that vision changes. A

deterioration of Mr. Rauenhorst's vision in the future could affect his

ability to operate a commercial vehicle as safely as he has in the

past. For that reason, the FHWA will impose conditions on the waiver to

ensure that Mr. Rauenhorst's vision is monitored annually. These

conditions are consistent with the grandfathering provisions applied to

drivers who participated in the vision waiver study program. They are

found at 49 CFR 391.64(b) and include the following: (1) That Mr.

Rauenhorst be physically examined every year (a) by an ophthalmologist

or optometrist who attests to the fact that his vision continues to

measure at least 20/40

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(Snellen) in the better eye; and (b) by a medical examiner who attests

to the fact that he is otherwise physically qualified under 49 CFR

391.41; (2) that he provide a copy of the ophthalmologist or

optometrist report to the medical examiner at the time of the annual

medical examination; and (3) that he keep a copy of the annual medical

certification in his driver qualification file as long as he is self-

employed or provide a copy to his employer for retention in the

driver's qualification file, and retain a copy of the certification on

his person while driving for presentation to a duly authorized Federal,

State, or local enforcement official.

Discussion of Comments

The FHWA received four (4) comments to the docket in response to

its July 2, 1997, notice of intent to grant Mr. Rauenhorst's

application for a waiver. Each comment has been considered by the FHWA

in reaching its final determination and is discussed below.

The International Brotherhood of Teamsters (IBT) supported the

FHWA's determination to grant the waiver. Although favoring a

conservative approach to waiving safety standards, the IBT agreed that

Mr. Rauenhorst's stable medical condition, driving history, and

agreement to periodic monitoring support a finding that the waiver is

consistent with the public interest and the safe operation of

commercial motor vehicles.

The comment filed by the Insurance Institute for Highway Safety

(IIHS) did not address Mr. Rauenhorst's waiver but instead urged the

FHWA, in this proceeding and two others in which its comment was filed,

to thoroughly verify all reports of crash rates made by drivers or

motor carriers. Noting that self-reporting has, in the past, resulted

in under reporting, the IIHS observed that drivers seeking waivers from

medical qualifications have an economic incentive to understate their

crashes and overstate their annual mileage. Those concerns are not a

factor in this proceeding, however, because the FHWA did not rely on

Mr. Rauenhorst's report of his accidents and traffic violations.

Instead the agency required, and relied on, a certified copy of Mr.

Rauenhorst's driving record from the State of Minnesota to prove that

he has had no accidents or traffic violations in the past three years.

The American Trucking Associations (ATA) opposes granting waivers

to drivers who cannot meet the existing medical standards. It believes

that the current standards ensure that drivers are in sufficiently good

health to drive safely and that the vision standard is particularly

important because driving responses are based primarily on what is

seen. If the waiver is granted, however, the ATA agrees that Mr.

Rauenhorst should be subject to the same annual examination

requirements that were imposed on the ``grandfathered'' drivers in FHWA

Docket MC-96-2. Additionally, it believes that Mr. Rauenhorst should be

required to report his involvement in any DOT-recordable accident

directly to the FHWA and be prohibited from driving until he has

undergone a medical and vision examination following the accident.

Except for his vision, Mr. Rauenhorst's health is not at issue

because he meets all other medical qualification standards in 49 CFR

391.31(b). Moreover, the clean driving record he has established over

the last three years with his limited vision reflects Mr. Rauenhorst's

ability to make safe and appropriate driving responses to visual

stimuli. Therefore, applying the Court's decision in Rauenhorst v.

United States Department of Transportation, Federal Highway

Administration, the FHWA is satisfied that Mr. Rauenhorst qualifies

under 49 U.S.C. 31136 for a waiver of the vision requirements, subject

to the conditions enumerated in this decision. One of those conditions

requires him to undergo annual vision examinations which will disclose

any deterioration in his visual capacity and will affect his

qualifications for the waiver. In view of his driving record and stable

vision over the last three years, there is no reason to believe that

his vision will play any greater role in a potential accident than the

vision of a driver who meets the vision standard. For that reason, the

FHWA does not agree that special conditions regarding accident

reporting and driving suspension are warranted.

In the fourth comment to the Docket, the Advocates for Highway and

Auto Safety (AHAS) questions whether the administrative record in this

case adequately addresses issues that are relevant to the merits of Mr.

Rauenhorst's waiver application. Four particular issues are raised in

its comment.

First, the AHAS does not think the record adequately reflects the

magnitude of the retinal detachment, describes the extent to which the

detachment has adversely affected Mr. Rauenhorst's vision, or provides

any analysis of other aspects of his vision such as depth perception,

peripheral vision, and visual acuity in the injured eye. But Mr.

Rauenhorst's medical reports for 1995, 1996, and 1997 are part of the

record in this case and indicate that he can count fingers, and see

movement, colors, and gross objects with his right eye. They also

reflect his doctor's opinion that the eye condition is stable, an

opinion which necessarily considers the severity of the retinal

detachment. Furthermore, the reports confirm that Mr. Rauenhorst has

20/20 corrected vision in his left eye and, therefore, provide an

overview of his vision which the FHWA believes adequate to support its

action in this case.

AHAS next points out that the record contains nothing to support

the agency's statement that Mr. Rauenhorst has adapted his driving

skills to accommodate his limited vision. We think the statement is

supported by Mr. Rauenhorst's driving record. That he has driven the

last three years without having an accident or being convicted of a

traffic violation demonstrates that he has developed driving techniques

to compensate for his vision impairment.

As its third issue, the AHAS objects that the record does not

explain how Mr. Rauenhorst obtained a CDL in view of his legally

disqualifying vision deficiency. Moreover, it wonders why the waiver is

necessary if he holds a valid CDL. In raising this issue, the AHAS has

misconstrued the relationship between a CDL and the driver

qualification standards in 49 CFR 391.41. To operate a commercial motor

vehicle in interstate commerce, a driver must have both a CDL and a

medical card. The medical card is issued by a medical examiner who

certifies that the driver meets the physical qualification standards in

49 CFR 391.41(b). Mr. Rauenhorst cannot meet those physical standards

due to his vision, and, therefore, does not possess the medical card

required to operate in interstate commerce. On the other hand, the CDL

is issued by the driver's State and authorizes a person to drive a

particular kind of commercial vehicle. Although States have physical

qualification requirements compatible with those in 49 CFR 391.41(b), a

State may waive those requirements for intrastate operations under

certain conditions. Thus, it is possible for a driver to obtain a CDL

but not be physically qualified to drive in interstate commerce. Mr.

Rauenhorst falls into this category, and consequently his driving has

been limited to intrastate commerce even though he holds a valid CDL.

With a waiver of the vision requirement in 49 CFR 391.41(b)(10), he

will be able to obtain a medical card and operate in interstate

commerce.

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Finally, the AHAS notes that the record contains no assessment of

the character of mileage driven by Mr. Rauenhorst. It asserts that

intrastate operations involve different driving conditions than

interstate operations so Mr. Rauenhorst's mileage must be categorized

in order to properly evaluate his experience and driving record. Such

an approach would create a Catch-22 for persons seeking a waiver.

Drivers like Mr. Rauenhorst do not physically qualify to drive in

interstate commerce. If interstate driving experience is required

before obtaining a waiver, a physically challenged driver would never

qualify for a waiver, or, alternatively, would be compelled to drive

illegally in interstate commerce to acquire the experience necessary to

be evaluated for a waiver. The FHWA cannot sanction a standard that

yields such a result. Moreover, intrastate driving amply tests the

skills and capability of a driver.

Intrastate driving could very well expose the driver to more

congested urban areas, narrower rural roads, a greater variety of

vehicles, more pedestrians, and more vehicle traffic than exists on

interstate highways. Intrastate driving also involves substantial

driving on highways on the interstate system and on other roads built

to interstate standards. These conditions tax visual capacity and

driver response just as intensely as interstate driving conditions. For

this reason, we believe Mr. Rauenhorst's intrastate driving experience

provides an adequate basis for evaluating his ability to safely operate

a CMV in interstate commerce.

Conclusion

After considering the comments to the Docket and based upon its

evaluation of Mr. Rauenhorst's waiver application in accordance with

Rauenhorst v. United States Department of Transportation, Federal

Highway Administration, the FHWA waives application of the vision

requirement in 49 CFR 391.41(b)(10) as it applies to Mr. Rauenhorst

subject to the following conditions: (1) That Mr. Rauenhorst be

physically examined every year (a) by an ophthalmologist or optometrist

who attests to the fact that his vision continues to measure at least

20/40 (Snellen) in the better eye; and (b) by a medical examiner who

attests to the fact that he is otherwise physically qualified under 49

CFR 391.41; (2) that he provide a copy of the ophthalmologist or

optometrist report to the medical examiner at the time of the annual

medical examination; and (3) that he keep a copy of the annual medical

certification in his driver qualification file as long as he is self-

employed or provide a copy to his employer for retention in the

driver's qualification file, and retain a copy of the certification on

his person while driving for presentation to a duly authorized Federal,

State, or local enforcement official.

Authority: 49 U.S.C. 31136; 23 U.S.C. 315; 49 CFR 1.48.

Issued on: December 31, 1997.

Kenneth R. Wykle,

Federal Highway Administrator.

[FR Doc. 98-568 Filed 1-8-98; 8:45 am]

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