[Federal Register Volume 67, Number 174 (Monday, September 9, 2002)]
[Notices]
[Pages 57267-57270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22827]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2002-12294]


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

DATES: September 9, 2002.

FOR FURTHER INFORMATION CONTACT: For information about the vision 
exemptions in this notice, you may contact Ms. Sandra Zywokarte, Office 
of Bus and Truck Standards and Operations, (202) 366-2987, 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.

[[Page 57268]]

Background

    On July 11, 2002, the FMCSA published notice of its receipt of 
applications from 30 individuals, and requested comments from the 
public (67 FR 46016). The 30 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: Danny Adams, Michael D. Armstrong, Thomas E. 
Barnhart, William J. Bell, Frank R. Berritto, Robert B. Brewer, Jr., 
Jack D. Clodfelter, James W. Collins, Douglas W. Cotney, Tommy J. 
Cross, Jr., Daniel K. Davis III, Eric D. Davis, Gary R. Evans, Shelton 
L. Harvey, Gary T. Hicks, Walter R. Morris, Barbara C. Pennington, 
Stephen C. Perdue, Allen V. Pickard, Larry A. Priewe, Gary L. Reveal, 
Billy L. Riddle, Randolph L. Rosewicz, Robert L. Savage, Kenneth D. 
Sisk, Kenneth E. Suter, Jr., Patrick D. Talley, Loren R. Walker, Edward 
C. Williams, and Timothy J. Wilson.
    Under 49 U.S.C. 31315 and 31136(e), the 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, the FMCSA has evaluated the 30 petitions on their merits 
and made a determination to grant the exemptions to 29 of them. The 
comment period closed on August 12, 2002. One comment was received, and 
its contents were carefully considered by the FMCSA in reaching the 
final decision to grant the petitions.
    The FMCSA has not made a decision on the application of Eric D. 
Davis. Subsequent to the publication of the notice of applications and 
request for comments, the agency received additional information from 
its check of his motor vehicle record, and we are evaluating that 
information. A decision on this petition 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)).
    Beginning in 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 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 29 applicants fall into this category. They are unable to meet 
the vision standard in one eye for various reasons, including 
amblyopia, macular scar, 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 4 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, 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, i.e., the FMCSRs, however, require 
more.
    While possessing a valid CDL or non-CDL, these 29 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 40 
years. In the past 3 years, two of the drivers have had convictions for 
traffic violations. One of these convictions was for Speeding, and one 
was for ``Using the Second Lane of a Three-Lane Highway.'' Three 
drivers were involved in one accident each, and one driver was involved 
in two accidents in a CMV, but none of these received a citation.
    The qualifications, experience, and medical condition of each 
applicant were stated and discussed in detail in the July 11, 2002, 
notice. Since there were no docket comments on the specific merits or 
qualifications of any applicant, we have not repeated the individual 
profiles here. Our summary analysis of the applicants is supported by 
the information published at 67 FR 46016.

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 each of 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

[[Page 57269]]

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 29 applicants receiving an exemption, we note that the applicants 
have had only five accidents and two 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, 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 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) to 29 of the 30 applicants 
listed in the July Notice.
    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 29 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.
    Advocates for Highway and Auto Safety (Advocates) expresses 
continued opposition to the FMCSA's policy to grant exemptions from the 
Federal Motor Carrier Safety Regulations, including the driver 
qualification standards. Specifically, Advocates: (1) Objects to the 
manner in which the 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 Advocates 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 comment to the docket and based upon its 
evaluation of the 29 exemption applications in accordance with 
Rauenhorst v. United States Department of Transportation, Federal 
Highway Administration, 95 F.3d 715 (8th Cir. 1996), the FMCSA exempts 
Danny Adams, Michael D. Armstrong, Thomas E. Barnhart, William J. Bell, 
Frank R. Berritto, Robert B. Brewer, Jr., Jack D. Clodfelter, James W. 
Collins, Douglas W. Cotney, Tommy J. Cross, Jr., Daniel K. Davis III, 
Gary R. Evans, Shelton L. Harvey, Gary T. Hicks, Walter R. Morris, 
Barbara C. Pennington, Stephen C. Perdue, Allen V. Pickard, Larry A. 
Priewe, Gary L. Reveal, Billy L. Riddle, Randolph L. Rosewicz, Robert 
L. Savage, Kenneth D. Sisk, Kenneth E. Suter, Jr., Patrick D. Talley, 
Loren R. Walker, Edward C. Williams, and Timothy J. Wilson 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

[[Page 57270]]

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.

    Issued on: September 3, 2002.
Brian M. McLaughlin,
Associate Administrator, Policy and Program Development.
[FR Doc. 02-22827 Filed 9-6-02; 8:45 am]
BILLING CODE 4910-EX-P