[Federal Register Volume 66, Number 153 (Wednesday, August 8, 2001)]
[Notices]
[Pages 41654-41656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19897]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2001-9561]


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

DATES: August 8, 2001.

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, Mr. Joseph Solomey, Office of the 
Chief Counsel, (202) 366-1374, 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

    You may see all the comments online through the Document Management 
System (DMS) at: http://dmses.dot.gov.

Background

    Twenty-two individuals petitioned the FMCSA for an exemption from 
the vision requirement in 49 CFR 391.41(b)(10), which applies to 
drivers of commercial motor vehicles (CMVs) in interstate commerce. 
They are: Roger D. Anderson, Joey E. Buice, Ronald D. Danberry, Paul W. 
Dawson, Lois E. DeSouza, Richard L. Gandee, Steven A. Garrity, Chester 
L. Gray, Waylon E. Hall, Jeffery M. Kimsey, Gerald L. Phelps, Doyle E. 
Ramsey, Michael J. Risch, Tim M. Seavy, Kim L. Seibel, Edd J. Stabler, 
Randy D. Stanley, Lee T. Taylor, James Melvin Tayman, Sr., Wesley E. 
Turner, Edward W. Yeates, Jr., and John C. 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 has evaluated the 22 petitions on their merits 
and made a determination to grant the exemptions to all of them. On 
June 6, 2001, the agency published notice of its receipt of 
applications from these 22 individuals, and requested comments from the 
public (66 FR 30502). The comment period closed on July 6, 2001. One 
comment was received, and its content was carefully considered by the 
FMCSA in reaching the final decision to grant the petitions.

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 Federal Highway Administration (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, FHWA-98-4334.)

[[Page 41655]]

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 22 applicants fall into this category. They are unable to meet 
the vision standard in one eye for various reasons, including 
amblyopia, retinal detachment, and loss of an eye due to trauma. In 
most cases, their eye conditions were not recently developed. All but 5 
of the applicants were either born with their vision impairments or 
have had them since childhood. The 5 individuals who sustained their 
vision conditions as adults have had them for periods ranging from 4 to 
40 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. The Federal 
interstate qualification standards, however, require more.
    While possessing a valid CDL or non-CDL, these 22 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 45 
years. In the past 3 years, the 22 drivers had 4 convictions for 
traffic violations among them. Three of these convictions were for 
speeding. The other conviction was for stopping on the highway in a 
CMV. Two drivers were involved in an accident in a CMV, but did not 
receive a citation.
    The qualifications, experience, and medical condition of each 
applicant were stated and discussed in detail in a June 6, 2001, notice 
(66 FR 30502). Since the docket comment 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 is supported, with one exception, by the information published at 
66 FR 30502. After the FMCSA published its notice of receipt of 
applications, the agency received additional information from its check 
of these applicants' motor vehicle records that Mr. Westley E. Turner 
had an accident in a CMV, but did not receive a citation. According to 
the police report for the accident, the other driver was cited for 
``Changed Lanes Within 100 Feet of Intersection.''

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. To qualify for an exemption from the vision standard, the 
FMCSA requires a person to present verifiable evidence that he or she 
has driven a commercial vehicle safely with the vision deficiency for 3 
years. Recent driving performance is especially important in evaluating 
future safety, according to several research studies designed to 
correlate past and future driving performance. Results of these studies 
support the principle that the best predictor of future performance by 
a driver is his/her past record of accidents and traffic violations. 
Copies of the studies have been added to the docket. (FHWA-98-3637)
    We believe we can properly apply the principle to monocular 
drivers, because data from the vision waiver program clearly 
demonstrate the driving performance of experienced monocular drivers in 
the program is better than that of all CMV drivers collectively. (See 
61 FR 13338, 13345, March 26, 1996.) The fact that experienced 
monocular drivers with good driving records in the waiver program 
demonstrated their ability to drive safely supports a conclusion that 
other monocular drivers, meeting the same qualifying conditions as 
those required by the waiver program, are also likely to have adapted 
to their vision deficiency and will continue to operate safely.
    The first major research correlating past and future performance 
was done in England by Greenwood and Yule in 1920. Subsequent studies, 
building on that model, concluded that accident rates for the same 
individual exposed to certain risks for two different time periods vary 
only slightly. (See Bates and Neyman, University of California 
Publications in Statistics, April 1952.) Other studies demonstrated 
theories of predicting accident proneness from accident history coupled 
with other factors. These factors--such as age, sex, geographic 
location, mileage driven and conviction history--are used every day by 
insurance companies and motor vehicle bureaus to predict the 
probability of an individual 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 22 applicants receiving an exemption, we note that cumulatively the 
applicants have had only two accidents and four traffic violations in 
the last 3 years. The two accidents did not result in the issuance of 
citations against the applicants. 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

[[Page 41656]]

exposes the driver to more pedestrian and vehicular traffic than exists 
on interstate highways. Faster reaction to traffic and traffic signals 
is generally required because distances are more compact than on 
highways. These conditions tax visual capacity and driver response just 
as intensely as interstate driving conditions. 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 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 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 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 22 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. The Louisiana Department of Public 
Safety and Corrections wrote the FMCSA regarding the status of Mr. 
Waylon E. Hall's CDL. Louisiana commented that on August 29, 2000, it 
downgraded Mr. Hall's Class A CDL to a non-CDL license because he did 
not meet the minimum physical qualification requirements in 49 CFR 
391.41(b)(10). The Class A Louisiana CDL issued to Mr. Hall on January 
9, 1997, was issued in error. However, Louisiana indicated that it will 
reissue the CDL to Mr. Hall if the FMCSA grants him an exemption from 
the Federal vision requirements.

Conclusion

    After considering the comment to the docket and based upon its 
evaluation of the 22 exemption applications in accordance with the 
Rauenhorst decision, the FMCSA exempts Roger D. Anderson, Joey E. 
Buice, Ronald D. Danberry, Paul W. Dawson, Lois E. DeSouza, Richard L. 
Gandee, Steven A. Garrity, Chester L. Gray, Waylon E. Hall, Jeffery M. 
Kimsey, Gerald L. Phelps, Doyle E. Ramsey, Michael J. Risch, Tim M. 
Seavy, Kim L. Seibel, Edd J. Stabler, Randy D. Stanley, Lee T. Taylor, 
James Melvin Tayman, Sr., Wesley E. Turner, Edward W. Yeates, Jr., and 
John C. 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 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, 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: August 1, 2001.
Julie Anna Cirillo,
Acting Deputy Administrator.
[FR Doc. 01-19897 Filed 8-7-01; 8:45 am]
BILLING CODE 4910-EX-P