[Federal Register Volume 70, Number 153 (Wednesday, August 10, 2005)]
[Notices]
[Pages 46567-46569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15784]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2005-21254]


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 24 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 10, 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 May 31, 2005, the FMCSA published a notice of receipt of 
exemption applications from 24 individuals, and requested comments from 
the public (70 FR 30999). The 24 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: Linda L. 
Billings, George L. Cannon, Anthony Ciancone, Jr., Andrew B. Clayton, 
Kenneth D. Daniels, Jerry A. Davidson, Richard D. Espey, Jr., Allen R. 
Fasen, Tommy K. Floyd, Franklin G. Hermann, William W. Hodgins, Hazel 
L. Hopkins, Jr., Donald M. Jenson, Dean A. Maystead, Jason L. McBride, 
Sr., Willie J. Morgan, Carl V. Murphy, Jr., Donald L. Murphy, Mark D. 
Page, Larry D. Reynolds, Thomas D. Reynolds, Walter J. Savage, Jr., 
Thomas J. Sweeny, Jr., and Louis E. Villa, Jr.
    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 24 applications on their 
merits and made a determination to grant exemptions to all of them. The 
comment period closed on June 30, 2005. 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 24 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 seven of the applicants were either born with their vision 
impairments or have had them since childhood. The seven individuals who 
sustained their vision conditions as adults have had them for periods 
ranging from 4 to 45 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.

[[Page 46568]]

    While possessing a valid CDL or non-CDL, these 24 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 50 
years. In the past 3 years, three of the drivers have had convictions 
for traffic violations. Two of these convictions were for speeding, and 
one was for ``failure to obey traffic control device.'' Three drivers 
were involved in four crashes among them, but did not receive a 
citation.
    The qualifications, experience, and medical condition of each 
applicant were stated and discussed in detail in the May 31, 2005, 
notice (70 FR 30999). Since there were no substantial docket comments 
on the specific merits or qualifications of any applicant, we have not 
repeated the individual profiles here, but note that information 
presented at 70 FR 30999 indicating that applicant 2, George L. Cannon, 
has driven straight truck for 50 years, is in error. The information 
should have indicated that Mr. Cannon has driven tractor-trailer 
combinations for 50 years. Our summary analysis of the applicants is 
supported by this correction and the information published on May 31, 
2005 (70 FR 30999).

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, 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 24 applicants receiving an exemption, we note that the applicants 
have had only four crashes and three 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 24 applicants listed in the notice of 
May 31, 2005 (70 FR 30999).
    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 24 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

[[Page 46569]]

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 Sachau believes that vision exemptions are granted based 
on outdated research information from 1920 and 1952, therefore, 
compromising public safety on the highways. Also, she believes that 
medical examination information should not be accepted unless it is 
dated in the year the exemption is granted.
    In regard to the first issue, the discussion above under the 
heading, ``Basis for Exemption Determination,'' refers to research 
information completed in 1920 as the ``first major research'' and the 
study completed in 1952 as one of multiple ``subsequent studies.'' The 
references show that the correlation between past and future driving 
performance has stood the test of time. We cite more recent research 
from 1964 and 1971, as well as the agency's vision waiver study program 
of the early 1990s. (See 61 FR 13338, 13345, March 26, 1996.) In 
addition, the agency assembled a panel of physicians expert in 
diagnosing and treating vision problems and utilized data from the 
previous vision waiver program (early 1990s) to provide a scientific 
basis for the current Federal vision exemption program.
    In regard to the second issue, each applicant has been examined 
within one year of receiving the exemption by an ophthalmologist or 
optometrist who certifies the driver's vision has been stable for at 
least 3 years preceding the date of application. The FMCSA requires 
each driver upon receiving an exemption to be physically examined 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 
provide a copy of the ophthalmologist's or optometrist's report to a 
medical examiner who conducts a medical examination and certifies the 
driver under 49 CFR 391.43. Thereafter, each exempted driver must have 
an eye examination and be certified annually. Because each applicant 
has had stable vision for at least 3 years, and each applicant will 
undergo an eye examination upon receipt of the exemption, and yearly 
after receipt of the exemption, the FMCSA considers an exam performed 
within the last year to be consistent with the requirements of the 
vision program. In addition, it is consistent with the screening 
criteria of the vision waiver study program of the early 1990s. Those 
monocular drivers who participated in that program demonstrated a 
greater level of safety than that of all CMV drivers collectively.
    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 70 FR 16887 (April 1, 2005). We will not address 
these points again here, but refer interested parties to those earlier 
discussions.

Conclusion

    Based upon its evaluation of the 24 exemption applications, the 
FMCSA exempts Linda L. Billings, George L. Cannon, Anthony Ciancone, 
Jr., Andrew B. Clayton, Kenneth D. Daniels, Jerry A. Davidson, Richard 
D. Espey, Jr., Allen R. Fasen, Tommy K. Floyd, Franklin G. Hermann, 
William W. Hodgins, Hazel L. Hopkins, Jr., Donald M. Jenson, Dean A. 
Maystead, Jason L. McBride, Sr., Willie J. Morgan, Carl V. Murphy, Jr., 
Donald L. Murphy, Mark D. Page, Larry D. Reynolds, Thomas D. Reynolds, 
Walter J. Savage, Jr., Thomas J. Sweeny, Jr., and Louis E. Villa, Jr. 
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: August 4, 2005.
Pamela M. Pelcovits,
Director, Office of Policy, Plans, and Regulations.
[FR Doc. 05-15784 Filed 8-9-05; 8:45 am]
BILLING CODE 4910-EX-P