[Federal Register Volume 70, Number 62 (Friday, April 1, 2005)]
[Notices]
[Pages 16887-16892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6476]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2005-20027]


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 28 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: April 1, 2005.

FOR FURTHER INFORMATION CONTACT: Dr. Mary D. 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 January 14, 2005, the FMCSA published a notice of receipt of

[[Page 16888]]

exemption applications from 29 individuals, and requested comments from 
the public (70 FR 2701). 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: Eddie 
Alejandro, Eldred S. Boggs, David F. Breuer, James T. Butler, Roger K. 
Cox, Richard S. Cummings, Joseph A. Dean, Donald P. Dodson, Jr., 
William H. Goss, Eric W. Gray, James K. Holmes, Daniel L. Jacobs, Jose 
M. Limon-Alvarado, Robert S. Loveless, Jr., Eugene R. Lydick, John W. 
Montgomery, Danny R. Pickelsimer, Zeljko Popovac, Juan Manuel M. Rosas, 
Francis L. Savell, Richie J. Schwendy, David M. Stout, Artis Suitt, 
Gregory E. Thompson, Kerry W. VanStory, Harry S. Warren, Carl L. Wells, 
Prince E. Williams, and Keith L. Wraight.
    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 28 of those 
persons who applied for them. The comment period closed on February 14, 
2005. 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 Keith L. 
Wraight. Subsequent to the publication of the notice of applications 
and request for comments on January 14, 2005 (70 FR 2701), 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, 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 28 applicants fall into this category. They are unable to meet 
the vision standard in one eye for various reasons, including 
amblyopia, retinal and macular scars, and loss of an eye due to trauma. 
In most cases, their eye conditions were not recently developed. All 
but 12 of the applicants were either born with their vision impairments 
or have had them since childhood. The 12 individuals who sustained 
their vision conditions as adults have had them for periods ranging 
from 13 to 46 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 28 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 30 
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 ``failure to obey traffic sign.'' None of the drivers was 
involved in a crash.
    The qualifications, experience, and medical condition of each 
applicant were stated and discussed in detail in the January 14, 2005, 
notice (70 FR 2701). 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 January 14, 
2005 (70 FR 2701).

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 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 and 13345; March 26, 1996.) Because 
experienced monocular drivers with

[[Page 16889]]

good driving records in the waiver program demonstrated their ability 
to drive safely, this fact 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 28 applicants receiving an exemption, we note that the applicants 
have had no crashes and only 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 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 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 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 28 of the 29 applicants listed in the notice of January 14, 
2005 (70 FR 2701).
    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 28 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). The FMCSA's 
responses are restated below.
    On the first issue regarding the manner in which the FMCSA presents 
driver information to the public and makes safety determinations, 
Advocates questions how various aspects of exemption application 
information are verified. In particular, Advocates states that the 
public is not advised about outside verification of each applicant's 
miles driven, the number of years driving commercial vehicles, the type 
of vehicle driven, and the most recent 3-year driving record. The 
number of years driving commercial vehicles is not the precise 
experience criterion used to determine an applicant's acceptability for 
an exemption. That determination is made on the most recent 3 years' 
experience before application. That experience and the type of vehicle 
driven is verified by the applicant's employer.
    The recent 3-year driving record is verified through the Commercial 
Driver License Information System (CDLIS). This is another criterion 
used to determine if an applicant is acceptable. Total miles driven is 
not and never has been a criterion used to decide acceptability. It is, 
therefore, not verified. Mileage is presented as an indication of 
overall experience with CMVs.
    Advocates states that the FMCSA needs to provide an accurate 
mileage figure for the recent 3-year period. This mileage is allegedly 
needed to determine whether an applicant's crashes and violations are 
accumulated at low or high exposure in the 3 years preceding the 
application. While this may be an interesting determination in

[[Page 16890]]

some contexts, it is not relevant to the determination of the driver's 
acceptability. An applicant is acceptable relative to a driving record 
if there are no crashes for which the driver was issued a citation nor 
was a contributing factor. It is not relevant whether these types of 
crashes occur at high or low exposure. If they are present, the driver 
is disqualified.
    Advocates states that the FMCSA should require a minimum average 
annual miles driven or total mileage in order to qualify for an 
exemption. In making this statement, Advocates notes that mileage 
driven by applicants in the Federal Register notice ranges from as 
little as 37,000 miles over 17 years to over 3 million miles for two 
applicants with 30 and 32 years' driving experience respectively. The 
FMCSA believes defining a required minimum mileage for application 
would enact a spurious screening standard not supported by the results 
of the Vision Waiver Program. An examination of the data from the years 
the program was in operation shows the annual mileage driven ranged 
from as little as 1,000 miles to a maximum of 160,000 miles. The median 
annual miles driven was about 40,000 with 25 percent of the waiver 
holders usually driving less than 17,000 miles per year.
    Although a minimum mileage standard is an inappropriate criterion, 
FMCSA believes miles driven does have value in the context of program 
evaluation. It is part of the basis for establishing whether a program 
has achieved a ``level of safety that is equivalent to, or greater 
than, the level of safety that would have been achieved'' absent from 
exemption. The other part of the safety determination is the number of 
crashes experienced by an exempt group where crashes and mileage are 
related through a statistical model named Poisson regression. In this 
model, the relationship is given as the number of crashes (nc) being 
equal to a rate (r) times mileage (m) (nc=r x m). The rate in this 
model is usually referred to as the crash rate per some convenient unit 
of miles driven (1 million, for example). This rate is the basis 
through which the safety level of a program is determined and miles 
driven are an integral part of the determination. This framework, 
however, does not suggest that there is a minimum level of mileage that 
could be arbitrarily used for a screening decision.
    Advocates states that the FMCSA should consider imposing a sliding 
scale standard for drivers with little driving experience, holding 
applicants with relatively low accumulations of mileage and years of 
experience to a higher safety standard during the 3-year review period. 
Advocates based this view on two factors: (1) Exposure is frequently 
used as a means of determining safety, as when the FMCSA uses the 
fatality rate as a measure of safety progress in truck-related crashes; 
and (2) greater driving experience would mean the drivers have had more 
time to adjust to driving with their vision deficiencies. The FMCSA 
believes that imposing a sliding scale standard, like the minimum 
mileage requirement discussed above, would enact a spurious screening 
standard, based on data taken from the Vision Waiver Program which was 
shown to have an acceptable level of safety.
    Advocates states that, while the FMCSA provides some information on 
the applicant's separate experience with combination tractor-trailers 
and the straight trucks, the agency has not assessed the relative value 
in terms of driving experience between driving these types of vehicle 
configurations in predicting safety. This would suggest that there 
should be separate experience specifications for each type of CMV and 
that an exemption would be issued for a particular type of vehicle. 
Relative to this, Advocates formerly pointed to research literature 
concerned with the differences between the two types of trucks. This 
literature, however, does not address the operation of the two types of 
CMVs in relation to the visual conditions which are the focus of the 
exemption program. The best evidence of possible disparities in the 
operation of the CMV types is taken from the earlier Vision Waiver 
Program. The data taken from the program show that those driving 
straight trucks had a crash rate that was slightly higher than that of 
the combination truck operators (2.15 crashes per million miles driven 
versus 1.76). This difference was not statistically significant. As a 
result, it appears that a consideration of vehicle type in the 
application process is not necessary.
    The same conclusion can be drawn in relation to Advocates' 
statement concerned with driving routines. Advocates states that the 
FMCSA has not made any attempt to distinguish between the kinds of 
driving routine the applicants experienced based on the type of driving 
they had done. To support the need to do this, they previously noted 
that the agency distinguished between five types of drivers and driving 
regimens in its May 2000 proposed rule on driver rest and sleep for 
safe operations. This proposal was concerned with driver fatigue. There 
is no evidence that there is a differential effect of fatigue on 
drivers with the vision conditions that are the focus of exemptions. 
Consequently, the FMCSA does not believe there is a need to issue 
exemptions for specific types of driving routine.
    Advocates is concerned with the FMCSA's use of a 3-year driving 
record to screen drivers who apply for exemptions. They first claim 
that it is misleading to report a driving record for the most recent 3-
year period in conjunction with drivers' self report of the total 
number of years driving. This is misleading, they state, because the 
addition of the unverified total years of driving gives the impression 
of a longer period of safe driving. The FMCSA had no intention of 
conveying this type of interpretation. Total years driving was 
reported, as was mileage, to give an overall indication of experience. 
For the purposes of screening, a recent 3-year driving record is the 
critical focus relative to safe driving.
    Advocates then argues that a 3-year record may not be sufficient to 
guarantee a level of safety that is equivalent to or greater than that 
present in the absence of an exemption program. In support of this, it 
points to the comment filed by the Department of Motor Vehicles (DMV) 
for the State of California relative to a driver from that State who 
applied for an exemption (Mr. James N. Spencer at 65 FR 20245, April 
14, 2000). The California DMV opposed the granting of an exemption to 
this driver because of his crash involvement and citation record in 
years 4 and 5 before applying for an exemption. The FMCSA finds 
California's comment inconsistent with California's issuance of an 
intrastate CDL on July 23, 1997, to the driver.
    The FMCSA believes that using a 3-year driving record as a 
screening procedure in the application process is adequate to ensure 
the required level of safety. In John C. Anderson v. Federal Highway 
Administration, No. 98-3739 (8th Cir. May 1, 2000), the United States 
Court of Appeals for the Eighth Circuit affirmed the agency's 3-year 
requirement of driving with a vision impairment before being eligible 
for an exemption. This screening period was used in the Vision Waiver 
Program which was shown to have a level of safety that was better than 
the national norm. Moreover, as Advocates correctly points out, not all 
States maintain driving records for more than 3 years. Requiring some 
drivers to submit 3-year records and others to submit ones for a longer 
duration, as Advocates suggests, would be arbitrary and capricious.
    In another comment, Advocates suggests that the agency is 
sanitizing the

[[Page 16891]]

information in the driving record to justify granting vision 
exemptions. Specific information provided on the crashes and violations 
of applicants is a presentation of the facts as we know them and not 
any attempt to downplay or explain away crashes and citations as 
Advocates suggests.
    Advocates also comments that the opinions of ophthalmologists and 
optometrists are not persuasive and should not be relied on by the 
agency. 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, 
and not just based on a Snellen test. The FMCSA believes it can rely on 
medical opinions regarding whether a driver's visual capacity is 
sufficient to enable safe operations. The medical information is 
combined with information on experience and driving records in the 
agency's overall determination of whether exempting applicants from the 
vision standard is likely to achieve a level of safety equal to that 
existing without the exemption.
    In regard to Advocates' second issue regarding what inferences can 
be drawn from the results of the waiver study program, Advocates 
suggests that the agency cannot base the present proceedings on the 
results generated by the waiver study program because a valid research 
model was not used. In response to this concern, we note that the 
validity of research designs is a quality with many dimensions which 
cannot be accepted or dismissed in a blanket, simplistic statement. 
Validity can be concerned with the measurements used, the manner in 
which the study is performed (internal validity), or the application of 
the results for a broader inference (external validity). The approach 
used by the FMCSA for the assessment of risk is a valid design that has 
been used in epidemiology for studies of occupational health. These 
studies compare a treated or exposed group (such as the drivers who 
hold waivers) to a control group that is large and represents outcomes 
for the nation as a whole (e.g., national mortality rates or truck 
crash rates). This design has been used to investigate risk relative to 
the hazards of asbestos and benzene with regulatory decisions based on 
the outcomes.
    While the design has been successfully used in critical risk areas, 
its application has been challenged in adversarial proceedings. Most of 
the criticism has focused on the data used in the models (measurement 
validity). In these circumstances, it has been argued that exposure to 
hazards is not always clearly measured because recordkeeping is not 
accurate or complete. Criticism has also focused on the poor 
measurement of outcomes (e.g. the occurrence of disease or vehicle 
crashes). Threats to the validity of measurement were not a problem in 
the waiver program's risk assessment. Exposure, for example, in the 
assessment is manifested by participation in the waiver program (as in 
an exposure to a medical treatment or an employment condition) and 
through vehicle miles traveled (as exposure to risk). The measurement 
of participation in the program had no error by virtue of the required 
recordkeeping. Exposure to risk by vehicle miles traveled was measured 
by self-report and could, of course, contain errors. However, since 
reports were made on a monthly basis, it was not expected that the 
reporting for these short periods would contain significant systematic 
error over the life of the program.
    The measurement of risk outcomes was determined through crash 
occurrence. Crash occurrence was verified in multiple ways through 
self-report (a program requirement), the Commercial Driver License 
Information System (CDLIS), State driving records, and police crash 
reports. As a result it is believed that the research approach used in 
the waiver program did not suffer flaws relative to the validity of 
measurement.
    Criticism of internal validity was addressed in a sensitivity 
analysis. The original design proposed to use a sample of CMV operators 
without vision deficiencies as a comparison group. While the design was 
appealing, it had potential for flaws relative to internal validity. 
Because the vision deficiencies studied were a fixed condition, the 
drivers could not be randomly assigned to the waiver and comparison 
groups as is done in clinical trials, for example. Moreover, a 
comparison group could not be assembled from the general population of 
CMV operators due to a lack of volunteers. Instead, the information 
needed for comparison was taken from the General Estimates System 
(GES). GES is an annual survey of police crash reports sponsored by the 
National Highway Traffic Safety Administration that is based on sound 
statistical sampling principles. Estimates derived from the survey 
(national crash rates) represent national crash rate norms for large 
trucks.
    While the national norms in the GES data are effective for a 
comparison at the national level, they raise questions in relation to 
internal validity. When random assignment to the treatment and 
comparison groups cannot be used, internal validity can be questioned. 
The necessary approach to obtaining valid results, in this case, is to 
thoroughly examine a study for bias and make adjustments as necessary. 
To do this, additional information (e.g. demographic and operational 
data) is needed for both the treatment and comparison groups to 
determine if the samples are balanced. GES did not have these data, so 
internal validity could be questioned because adjustments could not be 
made. Under these circumstances, bias, if it existed, would remain 
hidden.
    To address this question, the agency performed a sensitivity 
analysis to assess the impact of possible hidden bias (Rosenbaum, P.R. 
Observational Studies, New York, Springer-Verlag 1995). The analysis 
examined outcomes under various levels of possible hidden bias and the 
results showed that the comparison with GES crash rates is insensitive 
to hidden bias. The results of this sensitivity analysis, filed in 
docket number FMCSA-99-5578, provide evidence to support the internal 
validity of the comparison to GES data.
    The remaining facet of validity that is of concern for the waiver 
program assessment involves its relevance in the regulatory setting 
(external validity). The structure of these types of epidemiological 
investigations provides a high level of external validity. Being able 
to compare outcomes to a national norm places the focus in proper 
perspective for regulatory matters. This, of course, is their strength 
relative to the waiver program where the GES crash rates represent a 
national safety norm.
    Based on the various assessments, it is clear that the results of 
the waiver program risk analysis are valid. The measurement of exposure 
and risk outcomes was conducted with virtually no error. The external 
validity is ensured because a national norm is the focus of comparison 
and, based on the sensitivity analysis, the internal validity is 
substantiated.
    Although the foregoing discussion successfully addresses Advocates' 
concerns about validity, there is another issue that was engaged to 
complete the scrutiny of the waiver program risk assessment. A full 
examination would consider all facets of how results are obtained. In 
particular, obtaining valid results that point to a clear causal 
connection between an action and an outcome rests on ruling out other

[[Page 16892]]

influences on the outcome. While this appears to be largely 
accomplished based on an examination of the various types of validity, 
there remained an additional potential threat to the validity of the 
results. Relative to this, it had been argued that the drivers in the 
various waiver programs have lower crash rates because they were aware 
of being monitored, and monitoring is a strong motivation to exercise 
care. To address this possible threat, the agency conducted a follow-up 
assessment after the waived drivers were given grandfather rights in 
March 1996 and were no longer monitored. Conducted in June 1998, the 
agency made an assessment of the drivers' crash experience for the 
period from March to December 1996. The results, on file in docket 
FMCSA-99-5578, showed that the drivers who had been in the program 
continued to have a crash rate that was lower than the national norm.
    In regard to their third issue, Advocates believes that the agency 
misinterpreted the current law on exemptions by considering it slightly 
more lenient than the previous law. Regardless of how one characterizes 
the new exemption language, the FMCSA strictly adheres to the statutory 
standard for granting an exemption. In short, we determine whether 
granting the exemption is likely to achieve an equal or greater level 
of safety than exists without the exemption.
    Advocates' final point suggesting that the Supreme Court decision, 
Albertsons, Inc. v. Kirkingburg, 119 S.Ct. 2162 (June 22, 1999) affects 
the legal validity of vision exemptions is without support. Vision 
exemptions are granted under FMCSA's statutory authority and standards, 
which were not at issue in the case.

Conclusion

    Based upon its evaluation of the 28 exemption applications, the 
FMCSA exempts Eddie Alejandro, Eldred S. Boggs, David F. Breuer, James 
T. Butler, Roger K. Cox, Richard S. Cummings, Joseph A. Dean, Donald P. 
Dodson, Jr., William H. Goss, Eric W. Gray, James K. Holmes, Daniel L. 
Jacobs, Jose M. Limon-Alvarado, Robert S. Loveless, Jr., Eugene R. 
Lydick, John W. Montgomery, Danny R. Pickelsimer, Zeljko Popovac, Juan 
Manuel M. Rosas, Francis L. Savell, Richie J. Schwendy, David M. Stout, 
Artis Suitt, Gregory E. Thompson, Kerry W. VanStory, Harry S. Warren, 
Carl L. Wells, and Prince E. Williams 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: March 28, 2005.
Rose A. McMurray,
Associate Administrator, Policy and Program Development.
[FR Doc. 05-6476 Filed 3-31-05; 8:45 am]
BILLING CODE 4910-EX-P