[Federal Register Volume 67, Number 78 (Tuesday, April 23, 2002)]
[Notices]
[Pages 19798-19800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9940]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2001-11426]


Qualification of Drivers; Exemption Applications; Vision

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

ACTION: Notice of final disposition.

-----------------------------------------------------------------------

SUMMARY: FMCSA announces its decision to exempt 36 individuals from the 
vision requirement in 49 CFR 391.41(b)(10).

DATES: April 23, 2002.

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

    Thirty-six individuals petitioned 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: 
Louis N. Adams, Guy M. Alloway, Lyle H. Banser, Paul R. Barron, Lloyd 
J. Botsford, Joseph E. Buck, Sr., Ronald M. Calvin, Rusbel P. 
Contreras, Timothy J. Droeger, Robert A. Fogg, Paul D. Gaither, David 
L. Grajiola, David L. Gregory, Walter D. Hague, Jr., Sammy K. Hines, 
Jeffrey J. Hoffman, Marshall L. Hood, Edward W. Hosier, Edmond L. Inge, 
Sr., James A. Johnson, Charles F. Koble, Robert W. Lantis, Lucio Leal, 
Terry W. Lytle, Earl R. Mark, James J. McCabe, Richard W. Neyens, 
Anthony G. Parrish, Bill L. Pearcy, Robert H. Rogers, Bobby C. Spencer, 
Mark J. Stevwing, Clarence C. Trump, Jr., Dennis R. Ward, Frankie A. 
Wilborn, and Jeffrey L. Wuollett.
    Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant 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.'' The statute also allows the 
agency to renew exemptions at the end of the 2-year period. 
Accordingly, FMCSA has evaluated the 36 petitions on their merits and 
made a determination to grant the exemptions to all of them. On March 
7, 2002, the agency published notice of its receipt of applications 
from these 36 individuals, and requested comments from the public (67 
FR 10471). The comment period closed on April 8, 2002. Four comments 
were received, and their contents were carefully considered by 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.) The panel's conclusion supports 
FMCSA's (and previously the FHWA's) view that the present standard is 
reasonable and necessary as a general standard to ensure highway 
safety. 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 36 applicants fall into this category. They are unable to meet 
the vision standard in one eye for various reasons, including 
amblyopia, macular scars, and loss of an eye due to trauma. In most 
cases, their eye conditions were not recently developed. All but nine 
of the applicants were either born with their vision impairments or 
have had them since childhood. The nine individuals who sustained their 
vision conditions as adults have had them for periods ranging from 6 to 
42 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 36 drivers have been 
authorized to drive a CMV in intrastate commerce, even though their 
vision disqualifies them from driving in

[[Page 19799]]

interstate commerce. They have driven CMVs with their limited vision 
for careers ranging from 6 to 56 years. In the past 3 years, the 36 
drivers had 9 convictions for traffic violations among them. Seven of 
these convictions were for Speeding. The other convictions consisted 
of: ``Violation of Red Light Signal'' and ``Improper Turning.'' 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 March 7, 2002, 
notice (67 FR 10471). 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 is supported by the information published at 67 
FR 10471.

Basis for Exemption Determination

    Under 49 U.S.C. 31315 and 31136(e), 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, 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, 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 36 applicants receiving an exemption, we note that cumulatively the 
applicants have had only two accidents and nine traffic violations in 
the last 3 years. 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, 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 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, 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, FMCSA will impose 
requirements on the 36 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.

[[Page 19800]]

Discussion of Comments

    FMCSA received three comments in this proceeding. The comments were 
considered and are discussed below.
    A letter was received from Babette E. Hosier, stating that drivers 
who have been driving in the past with visual impairment should be 
allowed to continue operating a CMV as long as their eye doctors report 
that they are capable of operating a CMV. FMCSA does not believe that 
vision exemptions should rest solely on the certification of an 
ophthalmologist or optometrist, for the reasons stated above under the 
heading ``Basis for Exemption Determination.''
    Two individuals wrote in support of granting Mr. Hosier a vision 
exemption.
    The Advocates for Highway and Auto Safety (AHAS) expresses 
continued opposition to FMCSA's policy to grant exemptions from the 
Federal Motor Carrier Safety Regulations, including the driver 
qualification standards. Specifically, AHAS: (1) Objects to the manner 
in which FMCSA presents driver information to the public and makes 
safety determinations; (2) objects to the agency's reliance on 
conclusions drawn from the vision waiver program; (3) claims the agency 
has misinterpreted statutory language on the granting of exemptions (49 
U.S.C. 31315 and 31136(e)); and finally (4) suggests that a recent 
Supreme Court decision affects the legal validity of vision exemptions.
    The issues raised by 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), 65 FR 57230 
(September 21, 2000), and 66 FR 13825 (March 7, 2001). We will not 
address these points again here, but refer interested parties to those 
earlier discussions.

Conclusion

    After considering the comments to the docket and based upon its 
evaluation of the 36 exemption applications in accordance with 
Rauenhorst v. United States Department of Transportation, Federal 
Highway Administration, 95 F.3d 715 (8th Cir. 1996), FMCSA exempts 
Louis N. Adams, Guy M. Alloway, Lyle H. Banser, Paul R. Barron, Lloyd 
J. Botsford, Joseph E. Buck, Sr., Ronald M. Calvin, Rusbel P. 
Contreras, Timothy J. Droeger, Robert A. Fogg, Paul D. Gaither, David 
L. Grajiola, David L. Gregory, Walter D. Hague, Jr., Sammy K. Hines, 
Jeffrey J. Hoffman, Marshall L. Hood, Edward W. Hosier, Edmond L. Inge, 
Sr., James A. Johnson, Charles F. Koble, Robert W. Lantis, Lucio Leal, 
Terry W. Lytle, Earl R. Mark, James J. McCabe, Richard W. Neyens, 
Anthony G. Parrish, Bill L. Pearcy, Robert H. Rogers, Bobby C. Spencer, 
Mark J. Stevwing, Clarence C. Trump, Jr., Dennis R. Ward, Frankie A. 
Wilborn, and Jeffrey L. Wuollett 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 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 FMCSA for a renewal under procedures in effect at that time.

    Issued on: April 18, 2002.
Brian M. McLaughlin,
Associate Administrator for Policy and Program Development.
[FR Doc. 02-9940 Filed 4-22-02; 8:45 am]
BILLING CODE 4910-EX-P