[Federal Register Volume 65, Number 73 (Friday, April 14, 2000)]
[Notices]
[Pages 20251-20254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-9255]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. 99-6480 (Formerly OMCS Docket No. 99-6480)]


Qualification of Drivers; Exemption Applications; Vision

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition.

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SUMMARY: The FMCSA announces its decision to exempt 34 individuals from 
the vision requirement in 49 CFR 391.41(b)(10).

[[Page 20252]]


DATES: April 14, 2000.

FOR FURTHER INFORMATION CONTACT: For information about the vision 
exemptions in this notice, Ms. Sandra Zywokarte, Office of Bus and 
Truck Standards and Operations, (202) 366-2987; for information about 
legal issues related to this notice, Ms. Judith Rutledge, Office of the 
Chief Counsel, (202) 366-2519, FMCSA, Department of Transportation, 400 
Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 
a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users may access all comments received by the U.S. DOT 
Dockets, Room PL-401, by using the universal resource locator (URL):     
http://dms.dot.gov. It is available 24 hours each day, 365 days each 
year. Please follow the instructions online for more information and 
help.
    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the Government Printing 
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet 
users may reach the Federal Register's home page at: http://www.nara.gov/fedreg and the Government Printing Office's web page at: 
http://www.access.gpo.gov/nara.

Background

    On January 1, 2000, the FMCSA was created to assume 
responsibilities relevant to motor carrier safety (See The Motor 
Carrier Safety Improvement Act of 1999, Public Law 106-159, 113 Stat. 
1748 (December 9, 1999)). This explains the docket transfer.
    Thirty-four individuals petitioned the FHWA for an exemption of the 
vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of 
commercial motor vehicles (CMVs) in interstate commerce. The FMCSA is 
now responsible for processing the vision exemption applications of the 
34 drivers. They are Rodney D. Blaschke, Thomas B. Blish, Ronnie 
Freamon Bowman, James C. Bryce, Thomas L. Corey, James D. Davis, Glenn 
Gee, Lloyd E. Hall, Byron Dale Hardie, Robert N. Heaton, Edward E. 
Hooker, James M. Irwin, Laurent G. Jacques, Alfred G. Jeffus, Oskia 
Johnson, Michael W. Jones, Don R. Kennedy, Dennis E. Krone, James F. 
Laverdure, Christopher P. Lefler, David R. Linzy, Richard Joseph 
Madler, Earl E. Martin, David P. McCabe, Richard John McKenzie, Jr., 
Kenneth R. Piechnik, Tommy L. Ray, Jr., William A. Reyes, Carl A. Sigg, 
Sammy D. Steinsultz, Edward J. Sullivan, John C. Vantaggi, Winston 
Eugene White, and Turgut T. Yilmaz. Under 49 U.S.C. 31315 and 31136(e), 
the FMCSA may grant an exemption for a renewable 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.'' Accordingly, the FMCSA evaluated the petitions on 
their merits and made a preliminary determination that the waivers 
should be granted. On December 6, 1999, the agency published notice of 
its preliminary determination and requested comments from the public 
(64 FR 68195). The comment period closed on January 5, 2000. Two 
comments were received, and their contents were carefully considered by 
the FMCSA in reaching the final decision to grant the petitions.

Vision and Driving Experience of the Applicants

    The vision requirement in 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.

    Since 1992, the FHWA 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). The 
panel's conclusion supports the FMCSA's (and previously the FHWA's) 
view that the present standard is reasonable and necessary as a general 
standard to ensure highway safety. The FMCSA also recognizes that some 
drivers do not meet the vision standard, but have adapted their driving 
to accommodate their vision limitation and demonstrated their ability 
to drive safely.
    The 34 applicants fall into this category. They are unable to meet 
the vision standard in one eye for various reasons, including 
amblyopia, retinal detachment, macular scar, and loss of an eye due to 
trauma. In most cases, their eye conditions were not recently 
developed. Over half of the applicants were either born with their 
vision impairments or have had them since childhood. The other 
individuals who sustained their vision conditions as adults have had 
them for periods ranging from 5 to 43 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, can perform all the 
tasks necessary to operate a CMV. The doctors' opinions are supported 
by the applicants' possession of a valid commercial driver's license 
(CDL). Before issuing a CDL, States subject drivers to knowledge and 
performance tests designed to evaluate their qualifications to operate 
the CMV. All these applicants satisfied the testing standards for their 
State of residence. By meeting State licensing requirements, the 
applicants demonstrated their ability to operate a commercial vehicle, 
with their limited vision, to the satisfaction of the State. The 
Federal interstate qualification standards, however, require more.
    While possessing a valid CDL, these 34 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 5 to 49 years. 
In the past 3 years, the 34 drivers had nine convictions for traffic 
violations among them. Two drivers were involved in accidents in their 
CMVs, but there were no injuries and neither of the CMV drivers 
received a citation. The drivers were convicted of seven moving traffic 
violations, six of them were for speeding and one was for ``Traffic 
Control Device.''
    The qualifications, experience, and medical condition of each 
applicant were stated and discussed in detail in a December 6, 1999, 
notice (64 FR 68195). Since the docket comments did not focus on the 
specific merits or qualifications of any applicant, we have not 
repeated the individual profiles here. Our summary analysis of the 
applicants as a group, however, is supported by the information 
published at 64 FR 68195.

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

[[Page 20253]]

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 these drivers to 
drive in interstate commerce as opposed to restricting them 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. Recent driving performance is especially important in 
evaluating future safety according to several research studies designed 
to correlate past and future driving performance. Results of these 
studies support the principle that the best predictor of future 
performance by a driver is his/her past record of accidents and traffic 
violations. Copies of the studies have been added to the docket.
    We believe we can properly apply the principle to monocular drivers 
because data from the vision waiver program clearly demonstrate the 
driving performance of experienced monocular drivers in the program is 
better than that of all CMV drivers collectively. (See 61 FR 13338, 
13345, March 26, 1996). That experienced monocular drivers with good 
driving records in the waiver program demonstrated their ability to 
drive safely supports a conclusion that other monocular drivers, 
meeting the same qualifying conditions to those required by the waiver 
program, are also likely to have adapted to their vision deficiency and 
will continue to operate safely.
    The first major research correlating past and future performance 
was done in England by Greenwood and Yule in 1920. Subsequent studies, 
building on that model, concluded that accident rates for the same 
individual exposed to certain risks for two different time periods vary 
only slightly. (See Bates and Neyman, University of California 
Publications in Statistics, April 1952.) Other studies demonstrated 
theories of predicting accident proneness from accident history coupled 
with other factors. These factors, such as age, sex, geographic 
location, mileage driven and conviction history, are used every day by 
insurance companies and motor vehicle bureaus to predict the 
probability of an individual experiencing future accidents. (See Weber, 
Donald C., ``Accident Rate Potential: An Application of Multiple 
Regression Analysis of a Poisson Process,'' Journal of American 
Statistical Association, June 1971). A 1964 California Driver Record 
Study prepared by the California Department of Motor Vehicles concluded 
that the best overall accident predictor for both concurrent and 
nonconcurrent events is the number of single convictions. This study 
used 3 consecutive years of data, comparing the experiences of drivers 
in the first 2 years with their experiences in the final year.
    Applying principles from these studies to the past 3-year record of 
the 34 applicants, we note that cumulatively the applicants have had 
only two accidents and seven traffic violation in the last 3 years. 
Neither of the accidents resulted in bodily injury or issuance of a 
citation against the applicant. 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 applicants' intrastate driving experience provides 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 exist on interstate highways. Faster reaction to 
traffic and traffic signals is generally required because distances are 
more compact than on highways. These conditions tax visual capacity and 
driver response just as intensely as interstate driving conditions. The 
veteran drivers in this proceeding have operated CMVs safely under 
those conditions for at least 5 years, most for much longer. Their 
experience and driving records lead us to believe that each applicant 
is capable of operating in interstate commerce as safely as he or she 
has been performing in intrastate commerce. Consequently, the FMCSA 
finds that exempting applicants from the vision standard in 49 CFR 
391.41(b)(10) is likely to achieve a level of safety equal to that 
existing without the exemption. For this reason, the agency will grant 
the exemptions for the 2-year period allowed by 49 U.S.C. 31315 and 
31136(e).
    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 34 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 its driver 
qualification file, or keep a copy in his/her driver qualification file 
if he/she is self-employed. The driver must also have a copy of the 
certification when driving so it may be presented to a duly authorized 
Federal, State, or local enforcement official.

Discussion of Comments

    The FMCSA received two comments in this proceeding. Each comment 
was considered and is discussed below.
    A letter was received from Mr. Oskia D. Johnson, one of the 
applicants under consideration. In his letter, Mr. Johnson asked that 
his application for a vision exemption be considered, citing his 
driving safety record.
    In another comment, Advocates for Highway and Auto Safety (AHAS) 
expresses continued opposition to the FMCSA's policy to grant 
exemptions from the Federal Motor Carrier Safety Regulations (FMCSRs), 
including the driver qualification standards. Specifically, the AHAS: 
(1) Asks that the Office of Motor Carrier Research take no new action 
on exemption requests until an Administrator has been appointed and 
confirmed for the newly established Federal Motor Carrier Safety 
Administration; (2) asks the agency to clarify the consistency of the 
exemption application information, (3) objects to the agency's reliance 
on conclusions drawn from the vision waiver program, (4) suggests that 
the criteria used by the FHWA (now the FMCSA) for considering 
exemptions is flawed, (5) raises procedural objections to this 
proceeding, (6) claims the agency has misinterpreted statutory language 
on the granting of exemptions (49 U.S.C. 31315 and 31136(e)), and 
finally, (7) suggests that a recent Supreme Court

[[Page 20254]]

decision affects the legal validity of vision exemptions.
    On the first issue regarding the appointment and confirmation of an 
Administrator for the Federal Motor Carrier Safety Administration, an 
Acting Deputy Administrator has been appointed and delegated functions 
required for the operation of the new agency. The other issues raised 
by the AHAS were addressed at length in 64 FR 51568 (September 23, 
1999), 64 FR 66962 (November 30, 1999), 64 FR 69586 (December 13, 
1999), and 65 FR 159 (January 3, 2000). We see no benefit in addressing 
these points again and refer interested parties to those earlier 
discussions for reasons why the points were rejected.
    Notwithstanding the FMCSA's ongoing review of the vision standard, 
as evidenced by the medical panel's report dated October 16, 1998, and 
filed in this docket, the FMCSA must comply with Rauenhorst v. United 
States Department of Transportation, Federal Highway Administration, 95 
F.3d 715 (8th Cir. 1996), and grant individual exemptions under 
standards that are consistent with public safety. Meeting those 
standards, the 34 veteran drivers in this case have demonstrated to our 
satisfaction that they can continue to operate a CMV with their current 
vision safely in interstate commerce because they have demonstrated 
their ability in intrastate commerce. Accordingly, they qualify for an 
exemption under 49 U.S.C. 31315 and 31136(e).

Conclusion

    After considering the comments to the docket and based upon its 
evaluation of the 34 waiver applications in accordance with Rauenhorst 
v. United States Department of Transportation, Federal Highway 
Administration, supra, the FMCSA exempts Rodney D. Blaschke, Thomas B. 
Blish, Ronnie Freamon Bowman, James C. Bryce, Thomas L. Corey, James D. 
Davis, Glenn Gee, Lloyd E. Hall, Byron Dale Hardie, Robert N. Heaton, 
Edward E. Hooker, James M. Irwin, Laurent G. Jacques, Alfred G. Jeffus, 
Oskia Johnson, Michael W. Jones, Don R. Kennedy, Dennis E. Krone, James 
F. Laverdure, Christopher P. Lefler, David R. Linzy, Richard Joseph 
Madler, Earl E. Martin, David P. McCabe, Richard John McKenzie, Jr., 
Kenneth R. Piechnik, Tommy L. Ray, Jr., William A. Reyes, Carl A. Sigg, 
Sammy D. Steinsultz, Edward J. Sullivan, John C. Vantaggi, Winston 
Eugene White, and Turgut T. Yilmaz from the vision requirement in 49 
CFR 391.41(b)(10), subject to the following conditions: (1) That each 
individual be physically examined every year (a) by an ophthalmologist 
or optometrist who attests that the vision in the better eye continues 
to meet the standard in 49 CFR 391.41(b)(10), and (b) by a medical 
examiner who attests that the individual is otherwise physically 
qualified under 49 CFR 391.41; (2) that each individual provide a copy 
of the ophthalmologist's or optometrist's report to the medical 
examiner at the time of the annual medical examination; and (3) that 
each individual provide a copy of the annual medical certification to 
the employer for retention in its driver qualification file, or keep a 
copy in his/her driver qualification file if he/she is self-employed. 
The driver must also have a copy of the certification when driving so 
it may be presented to a duly authorized Federal, State, or local 
enforcement official.
    In accordance with 49 U.S.C. 31315 and 31136(e), each exemption 
will be valid for 2 years unless revoked earlier by the FMCSA. The 
exemption will be revoked if (1) the person fails to comply with the 
terms and conditions of the exemption; (2) the exemption has resulted 
in a lower level of safety than was maintained before it was granted; 
or (3) continuation of the exemption would not be consistent with the 
goals and objectives of 49 U.S.C. 31315 and 31136. If the exemption is 
still effective at the end of the 2-year period, the person may apply 
to the FMCSA for a renewal under procedures in effect at that time.

    Authority: 49 U.S.C. 322, 31315 and 31136; 49 CFR 1.73.

    Issued on: April 6, 2000.
Julie Anna Cirillo,
Acting Deputy Administrator, Federal Motor Carrier Safety 
Administration.
[FR Doc. 00-9255 Filed 4-13-00; 8:45 am]
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