[Federal Register Volume 68, Number 210 (Thursday, October 30, 2003)]
[Notices]
[Pages 61860-61863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27385]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2003-15892]


Qualification of Drivers; Exemption Applications; Vision

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

[[Page 61861]]


ACTION: Notice of final disposition.

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SUMMARY: The FMCSA announces its decision to exempt 29 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: October 30, 2003.

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:

Electronic Access

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

Background

    On September 5, 2003, the FMCSA published a Notice of its receipt 
of applications from 30 individuals, and requested comments from the 
public (68 FR 52811). The 30 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: Lauren C. 
Allen, Tracey A. Ammons, Randy B. Combs, William J. Corder, Robert L. 
Cross, Jr., William P. Davis, Dennie R. Ferguson, Edward J. Genovese, 
Dewayne E. Harms, Mark D. Kraft, David F. LeClerc, Roger J. Mason, 
David L. Menken, Richard L. Messinger, James M. Nelson, Edward J. 
Perfetto, Keith G. Reichel, Carson E. Rohrbaugh, Ronald L. Roy, Robert 
E. Sanders, Earl W. Sheets, James T. Simmons, Donald J. Snider, Ralphis 
L. Tisdale, Jesse L. Townsend, Thomas A. Valik, Jr., Thomas D. Walden, 
James A. Welch, John M. Whetham, and Michael E. Yount.
    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 applications on their 
merits and made a determination to grant the exemptions to 29 of them. 
The comment period closed on October 6, 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 Edward J. 
Perfetto. 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 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 
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 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 29 applicants fall into this category. They are unable to meet 
the vision standard in one eye for various reasons, including 
amblyopia, corneal and retinal 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 4 to 48 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 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 42 
years. In the past 3 years, six of the drivers have had convictions for 
traffic violations. Three of these convictions were for speeding, two 
for ``disregarding a traffic control device,'' one for ``obstructing an 
intersection,'' and one for ``truck off truck route.'' Three drivers 
were 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 September 5, 2003 
notice (68 FR 52811). 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 52811.

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

[[Page 61862]]

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 29 applicants receiving an exemption, we note that the applicants 
have had only three accidents and seven 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. 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 29 of the 30 applicants listed in the September notice (68 
FR 52811).
    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 
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 1999 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 29 exemption applications, the FMCSA exempts Lauren 
C. Allen, Tracey A. Ammons, Randy B. Combs,

[[Page 61863]]

William J. Corder, Robert L. Cross, Jr., William P. Davis, Dennie R. 
Ferguson, Edward J. Genovese, Dewayne E. Harms, Mark D. Kraft, David F. 
LeClerc, Roger J. Mason, David L. Menken, Richard L. Messinger, James 
M. Nelson, Keith G. Reichel, Carson E. Rohrbaugh, Ronald L. Roy, Robert 
E. Sanders, Earl W. Sheets, James T. Simmons, Donald J. Snider, Ralphis 
L. Tisdale, Jesse L. Townsend, Thomas A. Valik, Jr., Thomas D. Walden, 
James A. Welch, John M. Whetham, and Michael E. Yount 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: October 27, 2003.
Pamela M. Pelcovits,
Office Director, Policy, Plans, and Regulations.
[FR Doc. 03-27385 Filed 10-29-03; 8:45 am]
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