[Federal Register Volume 70, Number 10 (Friday, January 14, 2005)]
[Notices]
[Pages 2705-2707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-851]



[[Page 2705]]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2004-19477]


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 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: January 14, 2005.

FOR FURTHER INFORMATION CONTACT: Maggi Gunnels, Office of Bus and Truck 
Standards and Operations, (202) 366-4001, 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 November 8, 2004, the FMCSA published a notice of receipt of 
exemption applications from 29 individuals, and requested comments from 
the public (69 FR 64806). The 29 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: Leonida R. 
Batista, Johnny Becerra, Larry W. Burnett, Ross E. Burroughs, Roger C. 
Carson, Lester W. Carter, Larry Chinn, Christopher L. DePuy, John B. 
Ethridge, Larry J. Folkerts, Randolph D. Hall, Richard T. Hatchel, Paul 
W. Hunter, Harold D. Jones, Lester G. Kelley II, Robert L. Lafollette, 
Ray P. Lenz, John M. Lonergan, Michael B. McClure, Lamont S. McCord, 
Francis M. McMullin, Joe L. Meredith, Jr., Norman Mullins, Harold W. 
Mumford, Charles R. O'Connell, Dennis R. O'Dell, Jr., Virgil A. Potts, 
Clarence H. Redding, and David J. Triplett.
    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 29 applications on their 
merits and made a determination to grant exemptions to all of them. The 
comment period closed on December 8, 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 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, FMCSA-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 29 applicants fall into this category. They are unable to meet 
the vision standard in one eye for various reasons, including 
amblyopia, a macular scar, and loss of an eye due to trauma. In most 
cases, their eye conditions were not recently developed. All but 10 of 
the applicants were either born with their vision impairments or have 
had them since childhood. The 10 individuals who sustained their vision 
conditions as adults have had them for periods ranging from 13 to 61 
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 4 to 44 
years. In the past 3 years, six of the drivers have had convictions for 
traffic violations. Five of these convictions were for speeding and 
three were for ``failure to obey traffic sign.'' Five drivers were 
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 November 8, 2004, 
notice (69 FR 64806). 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 November 8, 
2004 (69 FR 64806).

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

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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 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 29 applicants receiving an exemption, we note that the applicants 
have had only five crashes and eight 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 29 applicants listed in the notice of 
November 8, 2004 (69 FR 64806).
    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 two comments in this proceeding. The comments 
were considered and are discussed below.
    Ms. Barb Sashaw believes the qualifications presented for each 
applicant should include an ophthalmologist's statement on an FMCSA-
mandated form that would include all elements that would make the 
vision in the better eye sufficient for driving. Also, she objected to 
the wording of an opinion by the optometrist regarding Applicant 
8. Finally, Ms. Sashaw does not think it safe in general for 
monocular drivers to be allowed to operate a CMV in highly congested 
States, such as New Jersey, New York, Connecticut and California.
    In regard to the first issue, the FMCSA believes it can rely on the 
medical opinions of vision specialists on whether a driver has 
sufficient vision to perform the tasks associated with operating a CMV, 
since the specialists express these opinions 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.
    In the case of Applicant 8, the optometrist stated, ``I 
feel he has sufficient vision to perform the driving tasks required to 
operate a commercial vehicle.'' Ms. Sashaw believes the use of the word 
``feel'' makes the statement insufficient. In the context of the

[[Page 2707]]

requirements for statements of medical specialists described above, the 
FMCSA believes the optometrist expressed her medical opinion, and it 
can rely on that opinion regarding whether the driver's visual capacity 
is sufficient to enable safe operations.
    In regard to the third issue, the discussion above under the 
heading, ``Basis for Exemption Determination,'' explains why FMCSA 
believes the monocular drivers included in this notice have 
demonstrated their ability to drive safely in conditions similar to 
interstate driving by operating in intrastate commerce for 3 years 
prior to their applications.
    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

    Based upon its evaluation of the 29 exemption applications, the 
FMCSA exempts Leonida R. Batista, Johnny Becerra, Larry W. Burnett, 
Ross E. Burroughs, Roger C. Carson, Lester W. Carter, Larry Chinn, 
Christopher L. DePuy, John B. Ethridge, Larry J. Folkerts, Randolph D. 
Hall, Richard T. Hatchel, Paul W. Hunter, Harold D. Jones, Lester G. 
Kelley II, Robert L. Lafollette, Ray P. Lenz, John M. Lonergan, Michael 
B. McClure, Lamont S. McCord, Francis M. McMullin, Joe L. Meredith, 
Jr., Norman Mullins, Harold W. Mumford, Charles R. O'Connell, Dennis R. 
O'Dell, Jr., Virgil A. Potts, Clarence H. Redding, and David J. 
Triplett from the vision requirement in 49 CFR 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: January 10, 2005.
Rose A. McMurray,
Associate Administrator, Policy and Program Development.
[FR Doc. 05-851 Filed 1-13-05; 8:45 am]
BILLING CODE 4910-EX-P