[Federal Register Volume 68, Number 158 (Friday, August 15, 2003)]
[Notices]
[Pages 48989-48991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20889]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2003-15268]


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 35 individuals from 
the vision requirement in the Federal Motor Carrier Safety Regulations 
(FMCSRs). The exemptions will enable these individuals to qualify as 
drivers of commercial motor vehicles (CMVs) in interstate commerce 
without meeting the vision standard prescribed in 49 CFR 391.41(b)(10).

DATES: August 15, 2003.

ADDRESSES: You may submit comments identified by DOT DMS Docket Number 
FMCSA-2003-15268 by any of the following methods:
    [sbull] Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    [sbull] Fax: 1-202-493-2251.
    [sbull] Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-0001.
    [sbull] Hand Delivery: Room Pl-401 on the plaza level of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal Holidays.
    [sbull] Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the on-line instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number for this notice. For detailed instructions on submitting 
comments and additional information on the rulemaking process, see the 
Public Participation heading of the Supplementary Information section 
of this document. Note that all comments received will be posted 
without change to http://dms.dot.gov,  including any personal 
information provided. Please see the Privacy Act heading under 
Regulatory Notices.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Ms. Sandra Zywokarte, Office of Bus 
and Truck Standards and Operations, (202) 366-2987, FMCSA, Department 
of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001. 
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:
    Public Participation: The DMS is available 24 hours each day, 365 
days each year. You can get electronic submission and retrieval help 
guidelines under the ``help'' section of the DMS Web site. If you want 
us to notify you that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgement 
page that appears after submitting comments on-line.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review the 
Department of Transportation's complete Privacy Act Statement in the 
Federal Register published on April 11, 2000 (Volume 65, Number 70; 
Pages 19477-78) or you may visit http://dms.dot.gov.

Background

    On June 23, 2003, the FMCSA published a Notice of its receipt of 
applications from 36 individuals, and requested comments from the 
public (68 FR 37197). The 36 individuals petitioned the FMCSA for 
exemptions from the vision requirement in 49 CFR 391.41(b)(10), which 
applies to drivers of CMVs in interstate commerce. They are: Gene E. 
Adams, Morris R. Beebe, William V. Beekler, Jerry W. Branning, Dennis 
R. Burda, James A. Busbin, Jr., Domenic J. Carassai, Theodore W. Cozat, 
Todd L. Dewey, John F. Dougherty, Fred W. Duran, Paul J. Edwards, Sr., 
William R. Evridge, Kenneth J. Fisk, Leslie W. Good, Michael E. Grens, 
Rodney P. Hains, Bruce E. Hemmer, Steven P. Holden, Russell R. Inlow, 
Christopher G. Jarvela, Henry Joiner, Darrell D. Kropf, Brad L. Mathna, 
William G. McClam, Vincent P. Miller, Warren J. Nyland, Dennis M. 
Prevas, Terry B. Pritchett, Greg L. Riles, Dwayne L. Sandlin, Jon D. 
Schwengel, Steven R. Smith, Calvin D. Tomlinson, Mona J. van Krieken, 
and Paul S. Yocum.
    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 36 applications on their 
merits and made a determination to grant the exemptions to 35 of them. 
The comment period closed on July 23, 2003. One comment was received, 
and its contents were carefully considered by the FMCSA in reaching the 
final decision to grant the exemptions.
    The FMCSA has not made a decision on the application of Dwayne L. 
Sandlin. Subsequent to the publication of the notice of applications 
and request for comments, the agency received additional documentation 
concerning his driving record and is evaluating the information. A 
decision on this application will be made in the future.

Vision and Driving Experience of the Applicants

    The vision requirement in the FMCSRs 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 agency has undertaken studies to determine if this

[[Page 48990]]

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 supported the agency'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 35 applicants fall into this category. They are unable to meet 
the vision standard in one eye for various reasons, including 
amblyopia, corneal and macular scars, and loss of an eye due to trauma. 
In most cases, their eye conditions were not recently developed. All 
but 14 of the applicants were either born with their vision impairments 
or have had them since childhood. The 14 individuals who sustained 
their vision conditions as adults have had them for periods ranging 
from 4 to 44 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.
    While possessing a valid CDL or non-CDL, these 35 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 46 
years. In the past 3 years, eight of the drivers have had convictions 
for traffic violations. Seven of these convictions were for speeding, 
two for ``failure to obey traffic sign,'' one for ``following too 
closely,'' and one for ``impeding traffic.'' One driver was involved in 
an accident but did not receive a citation.
    The qualifications, experience, and medical condition of each 
applicant were stated and discussed in detail in the June 23, 2003 
notice (68 FR 37197). 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 68 FR 37197.

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 him or her 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 a former FMCSA waiver study program clearly 
demonstrates that 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 35 applicants receiving an exemption, we note that the applicants 
have had only 1 accident and 11 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

[[Page 48991]]

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 is granting the exemptions for the 2-year period 
allowed by 49 U.S.C. 31315 and 31136(e) to 35 of the 36 applicants 
listed in the June 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 35 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 
FMCSRs, 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 comments to the docket and based upon its 
evaluation of the 35 exemption applications, the FMCSA exempts Gene E. 
Adams, Morris R. Beebe, William V. Beekler, Jerry W. Branning, Dennis 
R. Burda, James A. Busbin, Jr., Domenic J. Carassai, Theodore W. Cozat, 
Todd L. Dewey, John F. Dougherty, Fred W. Duran, Paul J. Edwards, Sr., 
William R. Evridge, Kenneth J. Fisk, Leslie W. Good, Michael E. Grens, 
Rodney P. Hains, Bruce E. Hemmer, Steven P. Holden, Russell R. Inlow, 
Christopher G. Jarvela, Henry Joiner, Darrell D. Kropf, Brad L. Mathna, 
William G. McClam, Vincent P. Miller, Warren J. Nyland, Dennis M. 
Prevas, Terry B. Pritchett, Greg L. Riles, Jon D. Schwengel, Steven R. 
Smith, Calvin D. Tomlinson, Mona J. van Krieken, and Paul S. Yocum 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.

    Issued on: August 11, 2003.
Robert F. Proferes,
Acting Associate Administrator for Policy and Program Development.
[FR Doc. 03-20889 Filed 8-14-03; 8:45 am]
BILLING CODE 4910-EX-P