[Federal Register Volume 67, Number 45 (Thursday, March 7, 2002)]
[Notices]
[Pages 10475-10477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5362]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket Nos. FMCSA-99-5578, FMCSA-99-5748 and FMCSA-99-6156 (FHWA-99-
5578, OMCS-99-5748 and OMCS-99-6156)]


Qualification of Drivers; Exemption Applications; Vision

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

ACTION: Notice of renewal of exemption; request for comments.

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SUMMARY: This notice announces FMCSA's decision to renew the exemptions 
from the vision requirement in 49 CFR 391.41(b)(10) for 19 individuals.

DATES: This decision is effective March 7, 2002. Comments from 
interested persons should be submitted by April 8, 2002.

ADDRESSES: You can mail or deliver comments to the U.S. Department of 
Transportation, Dockets Management Facility, Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590-0001. You can also submit comments as 
well as see the submissions of other commenters at http://dms.dot.gov. 
Please include the docket numbers that appear in the heading of this 
document. You can examine and copy this document and all comments 
received at the same Internet address or at the Dockets Management 
Facility from 9 a.m. to 5 p.m., e.t., Monday through

[[Page 10476]]

Friday, except Federal holidays. If you want to know that we received 
your comments, please include a self-addressed, stamped postcard or 
include a copy of the acknowledgement page that appears after you 
submit comments electronically.

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 and Filing

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

Background

    Nineteen individuals have requested renewal of their exemptions 
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 Herman L. Bailey, Jr., Mark A. Baisden, William A. Bixler, 
Brad T. Braegger, Richard J. Cummings, Clifford H. Dovel, Donald D. 
Dunphy, Daniel R. Franks, Victor B. Hawks, Jack L. Henson, Myles E. 
Lane, Sr., Dennis J. Lessard, Harry R. Littlejohn, Frances C. Ruble, 
George L. Silvia, James D. Simon, Wayland O. Timberlake, Robert J. 
Townsley, and Jeffrey G. Wuensch. Under 49 U.S.C. 31315 and 31136(e), 
FMCSA may renew 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.'' Accordingly, FMCSA has evaluated the 19 petitions for 
renewal on their merits and decided to extend each exemption for a 
renewable 2-year period.
    On January 3, 2000, the agency published a notice of final 
disposition announcing its decision to exempt 40 individuals, including 
13 of these applicants for renewal, from the vision requirement in 49 
CFR 391.41(b)(10) (65 FR 159). The qualifications, experience, and 
medical condition of each applicant were stated and discussed in detail 
at 64 FR 54948 (October 8, 1999). Two comments were received, and their 
contents were carefully considered by the agency in reaching its final 
decision to grant the petitions (65 FR 159). On November 30, 1999, the 
agency published a notice of final disposition announcing its decision 
to exempt 33 individuals, including 5 of these applicants for renewal, 
from the vision requirement in 49 CFR 391.41(b)(10) (64 FR 66962). The 
qualifications, experience, and medical condition of each applicant 
were stated and discussed in detail at 64 FR 40404 (July 26, 1999). 
Three comments were received, and their contents were carefully 
considered by the agency in reaching its final decision to grant the 
petitions (64 FR 66962). On September 23, 1999, the agency published a 
notice of final disposition announcing its decision to exempt 32 
individuals, including 1 of these applicants for renewal, from the 
vision requirement in 49 CFR 391.41(b)(10) (64 FR 51568). The 
qualifications, experience, and medical condition of the applicant were 
stated and discussed in detail at 64 FR 27027 (May 18, 1999). Two 
comments were received, and their contents were carefully considered by 
the agency in reaching its final decision to grant the petition (64 FR 
51568). The agency determined that exempting the individuals from 49 
CFR 391.41(b)(10) was likely to achieve a level of safety equal to, or 
greater than, the level that would be achieved without the exemption as 
long as the vision in each applicant's better eye continued to meet the 
standard specified in 49 CFR 391.41(b)(10). As a condition of the 
exemption, therefore, the agency imposed requirements on the 
individuals similar to the grandfathering provisions in 49 CFR 
391.64(b) applied to drivers who participated in the agency's former 
vision waiver program.
    These requirements are as follows: (1) That each individual be 
physically examined every year (a) by an ophthalmologist or optometrist 
who attests that vision in the better eye meets the standard in 49 CFR 
391.41(b)(10), and (b) by a medical examiner who attests 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 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.

Basis for Renewing Exemptions

    Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no 
longer than 2 years from its approval date and may be renewed upon 
application for additional 2-year periods. In accordance with 49 U.S.C. 
31315 and 31136(e), each of the 19 applicants has satisfied the entry 
conditions for obtaining an exemption from the vision requirements (65 
FR 159; 64 FR 54948; 64 FR 66962; 64 FR 40404; 64 FR 51568; 64 FR 
27027), and each has requested timely renewal of the exemption. These 
19 applicants have submitted evidence showing that the vision in their 
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 their records of safety while driving with their respective 
vision deficiencies over the past 2 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 a period of 2 years is likely to achieve a 
level of safety equal to that existing without the exemption for each 
renewal applicant.

Discussion of Comments

    The Advocates for Highway and Auto Safety (AHAS) expresses 
continued opposition to FMCSA's procedures for renewing exemptions from 
the vision requirement in 49 CFR 391.41(b)(10). Specifically, AHAS 
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 AHAS were addressed at length in 66 FR 17994 
(April 4, 2001). We will not address these points again here, but refer 
interested parties to that earlier discussion.

Conclusion

    In accordance with 49 U.S.C. 31315 and 31136(e), FMCSA extends the 
exemptions from the vision requirement in 49 CFR 391.41(b)(10) granted 
to Herman L. Bailey, Jr., Mark A. Baisden, William A. Bixler, Brad T. 
Braegger, Richard J. Cummings, Clifford H. Dovel, Donald D. Dunphy, 
Daniel R. Franks, Victor B. Hawks, Jack L. Henson, Myles E. Lane, Sr., 
Dennis J. Lessard, Harry R. Littlejohn, Frances C. Ruble, George L.

[[Page 10477]]

Silvia, James D. Simon, Wayland O. Timberlake, Robert J. Townsley, and 
Jeffrey G. Wuensch, 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 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 2 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).

Request for Comments

    FMCSA has evaluated the qualifications and driving performance of 
the 19 applicants here and extends their exemptions based on the 
evidence introduced. The agency will review any comments received 
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). While comments of this nature will be 
entertained at any time, FMCSA requests that interested parties with 
information concerning the safety records of these drivers submit 
comments by April 8, 2002. All comments will be considered and will be 
available for examination in the docket room at the above address. 
FMCSA will also continue to file in the docket relevant information 
which becomes available. Interested persons should continue to examine 
the docket for new material.

    Issued on: March 1, 2002.
Brian M. McLaughlin,
Associate Administrator for Policy and Program Development.
[FR Doc. 02-5362 Filed 3-6-02; 8:45 am]
BILLING CODE 4910-EX-P