[Federal Register Volume 69, Number 199 (Friday, October 15, 2004)]
[Notices]
[Pages 61292-61295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23162]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2004-17984]


Qualification of Drivers; Exemption Applications; Vision

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

ACTION: Notice of final disposition.

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[[Page 61293]]

SUMMARY: The FMCSA announces its decision to exempt 30 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 15, 2004.

FOR FURTHER INFORMATION CONTACT: Maggi Gunnels, 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 8 a.m. to 5 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 June 17, 2004, the FMCSA published a notice of receipt of 
exemption applications from 30 individuals, and requested comments from 
the public (69 FR 33997). 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: Robert L. 
Aurandt, Harry R. Brewer, Wilford F. Christian, Timothy A. DeFrange, 
Terry G. Dickson, Sr., Clarence N. Florey, Jr., Bobby C. Floyd, Steve 
H. Garrison, Ronald A. Gentry, Scott D. Goalder, Raymond P. Gonzales, 
David M. Hagadorn, Donald R. Hiltz, James L. Hooks, Francisco J. 
Jimenez, Kelly R. Konesky, Gregory T. Lingard, Hollis J. Martin, Truman 
J. Mathis, Robert E. Moore, Kevin C. Palmer, Charles O. Rhodes, Einar 
H. Rice, Gordon G. Roth, Manuel Sanchez, Chris H. Schultz, Halman 
Smith, Norman K. Stepleton, LaLanne Taylor, and James A. Walker.
    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 exemptions from the vision 
requirements to all of them. The comment period closed on July 19, 
2004. Two comments were received, and their contents were carefully 
considered by the FMCSA in reaching the final decision to grant the 
exemptions.

Vision and Driving Experience of the Applicants

    The vision requirement in the FMCSRs provides:
    A person is physically qualified to drive a CMV 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 visual 
acuity 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 30 applicants fall into this category. They are unable to meet 
the vision standard in one eye for various reasons, including 
amblyopia, macular and retinal scars, and loss of an eye due to trauma. 
In most cases, their eye conditions were not recently developed. All 
but eight of the applicants were either born with their vision 
impairments or have had them since childhood. The eight individuals who 
sustained their vision conditions as adults have had them for periods 
ranging from 8 to 37 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 of 
these applicants satisfied the testing standards for their State of 
residence. By meeting State licensing requirements, the applicants 
demonstrated their ability to operate a CMV, with their limited vision, 
to the satisfaction of the State.
    While possessing a valid CDL or non-CDL, these 30 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 52 
years. In the past 3 years, five of the drivers have had convictions 
for traffic violations. Five of these convictions were for speeding and 
one was for ``traffic turn/signal violation.'' One of the drivers was 
involved in a crash but did not receive a citation.
    The qualifications, experience, and medical condition of each 
applicant were stated and discussed in detail in the June 17, 2004, 
notice (69 FR 33997). Since there were no substantial 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 on June 17, 2004 
(69 FR 33997).

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 are able to drive only in intrastate commerce. With the 
exemption, applicants could also drive in interstate commerce. Thus, 
our analysis focuses on whether allowing these drivers to drive in 
interstate commerce will achieve an equal or greater level of safety as 
exists under current conditions.
    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

[[Page 61294]]

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 or her past record of crashes and traffic violations. Copies of the 
studies may be found at docket number FMCSA-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 crash 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 crash proneness from crash 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 crashes. (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 crash 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 30 applicants receiving an exemption, we note that the applicants 
have had only one crash and six 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 between them 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 the 30 applicants listed in the notice of 
June 17, 2004 (69 FR 33997).
    We recognize that the vision of an applicant may change and affect 
his or 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 30 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 or her driver's qualification 
file if he or 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 two comments in this proceeding. The comments 
were considered and are discussed below.
    An anonymous responder believes the qualifications presented for 
each applicant should include: (1) A standardized statement from an 
ophthalmologist, including peripheral vision and any other measurement 
of ability to see, guaranteeing there is absolutely no danger to any 
other driver; and (2) observations of driving behavior reported to the 
DOT by other drivers. Although this comment was introduced into the 
docket without attribution and, thus, would not ordinarily receive 
consideration, we will address the issues raised because they relate to 
matters of general applicability to the vision waiver process and are 
not specific to this comment. In regard to the first issue presented, 
the FMCSA does not rely solely on the vision examination and the eye 
specialist's statement to determine whether a driver should be 
exempted. In the agency's overall determination of whether exempting an 
applicant from the vision standard is likely to achieve a level of 
safety equal to that existing without the exemption, as required by 
statute, the medical information it receives is combined with 
information on the experience and driving record of the applicant. The 
opinions of the vision specialists on whether a driver has sufficient 
vision to perform the tasks associated with operating a CMV are made 
only after a thorough vision examination, including formal field of 
vision testing to identify any medical condition which may compromise 
the visual field, such as glaucoma, stroke or brain tumor. The FMCSA 
believes it can rely on medical opinions regarding whether a driver's 
visual capacity is sufficient to enable safe operations. In regard to 
the second requirement suggested by the responder, the FMCSA believes 
using official driving records

[[Page 61295]]

from the States and providing the public an opportunity to comment on 
each applicant's qualifications allows the public to have input while 
avoiding the use of unproven allegations.
    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. Sec. Sec.  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 30 exemption applications, the FMCSA exempts Robert 
L. Aurandt, Harry R. Brewer, Wilford F. Christian, Timothy A. DeFrange, 
Terry G. Dickson, Sr., Clarence N. Florey, Jr., Bobby C. Floyd, Steve 
H. Garrison, Ronald A. Gentry, Scott D. Goalder, Raymond P. Gonzales, 
David M. Hagadorn, Donald R. Hiltz, James L. Hooks, Francisco J. 
Jimenez, Kelly R. Konesky, Gregory T. Lingard, Hollis J. Martin, Truman 
J. Mathis, Robert E. Moore, Kevin C. Palmer, Charles O. Rhodes, Einar 
H. Rice, Gordon G. Roth, Manuel Sanchez, Chris H. Schultz, Halman 
Smith, Norman K. Stepleton, LaLanne Taylor, and James A. Walker from 
the vision requirement in 49 CFR Sec.  391.41(b)(10), subject to the 
requirements cited above (49 CFR 391.64(b)).
    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 12, 2004.
Rose A. McMurray,
Associate Administrator, Policy and Program Development.
[FR Doc. 04-23162 Filed 10-14-04; 8:45 am]
BILLING CODE 4910-EX-P