[Federal Register Volume 65, Number 184 (Thursday, September 21, 2000)]
[Notices]
[Pages 57234-57237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-24397]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. 2000-7165]


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

DATES: September 21, 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

    Sixty-three individuals petitioned the FMCSA for an exemption of 
the vision requirement in 49 CFR 391.41(b)(10),

[[Page 57235]]

which applies to drivers of commercial motor vehicles (CMVs) in 
interstate commerce. They are Elijah Allen, Jr., Charles Leon Baney, 
Walter F. Blair, Jullie A. Bolster, Gary Bryan, Timothy John 
Bryant,Thomas A. Burke, Monty Glenn Calderon, Ronald Lee Carpenter, 
Charles Casey Chapman, Milton Coleman, David Earl Corwin, Adam D. 
Craig, Eric L. Dawson, III, Richard L. Derick, Joseph A. Dunlap, John 
C. Edwards, Jr., Calvin J. Eldridge, Ronald G. Ellwanger, Marcellus 
Albert Garland, George J. Ghigliotty, Ronald E. Goad, Steven F. Grass, 
Randolph D. Hall, Reginald I. Hall, Sherman William Hawk Jr., Daniel J. 
Hillman, Gordon William Howell, Roger Louis Jacobson, Robert C. 
Jeffres, Alfred C. Jewell, Jr., Anton R. Kibler, James Alonzo Kneece, 
Ronnie L LeMasters, Samuel Joseph Long, Steven G. Luther, Lewis V. 
McNeice, Barry B. Morgan, Richard O'Neal, Jr., Dewey Owens, Jr., 
Richard E. Perry, Douglas McArthur Potter, Gregory Martin Preves, James 
M. Rafferty, Paul C. Reagle, Sr., Glenn E. Robbins, Daniel Salinas, 
Salvador Sarmiento, Wayne Richard Sears, Garry R. Setters, Hoyt M. 
Shamblin, Lee Russell Sidwell, Jesse M. Sikes, Harold A. Sleesman, 
James E. Smith, Daniel A Sohn, Denney Vern Traylor, Noel Stuart 
Wangerin, Brian W. Whitmer, Jeffrey D. Wilson, Joseph F. Wood, William 
E. Woodhouse, and Rick A. Young. 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 May 23, 2000, the agency published notice of its 
preliminary determination and requested comments from the public (65 FR 
33406). The comment period closed on June 22, 2000. One comment was 
received, and its content was carefully considered by the FMCSA in 
reaching the final decision to grant the petitions.
    The FMCSA has not made a decision on three applicants (Gary Bryan, 
Steven F. Grass and Glenn E. Robbins). Subsequent to the publication of 
the preliminary determination, the agency received additional 
information from its check of these applicants' motor vehicle records, 
and we are evaluating that information. A decision on these three 
petitions will be made in the future.

Vision and Driving Experience of the Applicants

    The vision requirement 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 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 60 applicants fall into this category. They are unable to meet 
the vision standard in one eye for various reasons, including 
amblyopia, retinal detachment, macular and corneal scarring, ocular 
histoplasmosis 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 32 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 60 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 60 drivers had three convictions for traffic 
violations among them. Three drivers were involved in accidents in 
their CMVs, but there were no injuries and none of the CMV drivers 
received a citation. The drivers were convicted of two moving traffic 
violations, one of them was 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 May 23, 2000, notice 
(65 FR 33406). 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 65 FR 
33406.

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 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.

[[Page 57236]]

    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 60 applicants, we note that cumulatively the applicants have had 
only three accidents and two traffic violation in the last 3 years. 
None 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 60 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 one comment in this proceeding. The comment was 
considered and is discussed below.
    The Advocates for Highway and Auto Safety (AHAS) expresses 
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 the agency to 
clarify the consistency of the exemption application information, (2) 
objects to the agency's reliance on conclusions drawn from the vision 
waiver program, (3) raises procedural objections to this proceeding, 
(4) claims the agency has misinterpreted statutory language on the 
granting of exemptions (49 U.S.C. 31315 and 31136(e)), and finally, (5) 
suggests that a recent Supreme Court decision affects the legal 
validity of vision exemptions.
    The 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), 65 FR 159 (January 3, 2000), and a Final 
Determination for 56 drivers, FMCSA Docket No.2000-7006, also published 
in today's Federal Register. We will not address these points again 
herein but 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 60 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 60 waiver applications in accordance with the 
Rauenhorst decision, the FMCSA exempts Elijah Allen, Jr., Charles Leon 
Baney, Walter F. Blair, Jullie A. Boster, Timothy John Bryant, Thomas 
A. Burke, Monty Glenn

[[Page 57237]]

Calderon, Ronald Lee Carpenter, Charles Casey Chapman, Milton Coleman, 
David Earl Corwin, Adam D. Craig, Eric L. Dawson, III, Richard L. 
Derick, Joseph A. Dunlap, John C. Edwards, Jr., Calvin J. Eldridge, 
Ronald G. Ellwanger, Marcellus Albert Garland, George J. Ghigliotty, 
Ronald E. Goad, Randolph D. Hall, Reginald I. Hall, Sherman William 
Hawk, Jr., Daniel J. Hillman, Gordon William Howell, Roger Louis 
Jacobson, Robert C. Jeffres, Alfred C. Jewell, Jr., Anton R. Kibler, 
James Alonzo Kneece, Ronnie L. LeMasters, Steven G. Luther, Samuel 
Joseph Long, Lewis V. McNeice, Barry B. Morgan, Richard O'Neal, Jr., 
Dewey Owens, Jr., Richard E. Perry, Douglas McArthur Potter, Gregory 
Martin Preves, James M. Rafferty, Paul C. Reagle, Sr., Daniel Salinas, 
Salvador Sarmiento, Wayne Richard Sears, Garry R. Setters, Hoyt M. 
Shamblin, Lee Russell Sidwell, Jesse M. Sikes, Harold A. Sleesman, 
James E. Smith, Daniel A. Sohn, Denny Vern Traylor, Noel Stuart 
Wangerin, Brian W. Whitmer, Jeffrey D. Wilson, Joseph F. Wood, William 
E. Woodhouse, and Rick A. Young 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: September 18, 2000.
Julie Anna Cirillo,
Acting Assistant Administrator, Federal Motor Carrier Safety 
Administration.
[FR Doc. 00-24397 Filed 9-20-00; 8:45 am]
BILLING CODE 4910-22-P