[Federal Register Volume 71, Number 72 (Friday, April 14, 2006)]
[Notices]
[Pages 19600-19602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3587]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2005-23238]


Qualification of Drivers; Exemption Applications; Vision

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

ACTION: Notice of final disposition.

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SUMMARY: FMCSA announces its decision to exempt 14 individuals from the 
vision requirement in the Federal Motor Carrier Safety Regulations 
(FMCSR). The exemptions will enable these individuals to operate 
commercial motor vehicles (CMVs) in interstate commerce without meeting 
the vision standard prescribed in 49 CFR 391.41(b)(10). The Agency has 
concluded that granting these exemptions will provide a level of safety 
that is equivalent to, or greater than, the level of safety maintained 
without the exemptions for these CMV drivers.

DATES: The exemptions are effective April 14, 2006.

FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Chief, Physical 
Qualifications Division, (202) 366-4001, [email protected], 
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 31, 2006, FMCSA published a Notice of receipt of 
exemption applications from 14 individuals, and requested comments from 
the public (71 FR 5105). The 14 individuals petitioned 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: Nick D. 
Bacon, Donald G. Bostic, Jr., Johnny W. Bradford, Aaron C. Buck, James 
C. Davis, James H. Eldridge, Jr., Michael G. Gould, Albert L. Gschwind, 
Bruce A. Homan, Matthew J. Konecki, Rick P. Moreno, Roy J. Oltman, 
Monte L. Purciful, and Bernard J. Wood.
    Under 49 U.S.C. 31315 and 31136(e), 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, FMCSA has evaluated the 14 applications on their merits 
and made a determination to grant exemptions to all of them. The 
comment period closed on March 2, 2006. Three comments were received, 
and fully considered by FMCSA in reaching the final decision to grant 
the exemptions.

Vision and Driving Experience of the Applicants

    The vision requirement in the FMCSR 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 to 120 
degrees, while leaving the visual acuity standard unchanged. (See Frank 
C. Berson, M.D., Mark C. Kuperwaser, M.D., Lloyd Pual 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. FMCSA also

[[Page 19601]]

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 14 exemption applicants listed in this Notice fall into this 
category. They are unable to meet the vision standard in one eye for 
various reasons, including amblyopia, glaucoma, cataract macular 
degeneration 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 6 to 26 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. 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 skills 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 14 drivers have been 
authorized to drive a CMV in intrastate commerce, even though their 
vision disqualified them from driving in interstate commerce. They have 
driven CMVs with their limited vision for careers ranging from 4 to 45 
years. In the past 3 years, none of the drivers have had any 
convictions for traffic violations and none of them were involved in 
crashes.
    The qualifications, experience, and medical condition of each 
applicant were stated and discussed in detail in the January 31, 2006 
Notice (71 FR 5105).

Basis for Exemption Determination

    Under 49 U.S.C. 31315 and 31136(e), 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, 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, FMCSA 
requires a person to present verifiable evidence that he/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 the Federal Highway Administration's (FHWA) 
former waiver study program clearly demonstrate 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 the 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 14 applicants, we note that one of the applicants had a traffic 
violation for speeding and one of them was involved in a crash. 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, 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/she has been performing in intrastate commerce. Consequently, 
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 14 applicants

[[Page 19602]]

listed in the Notice of January 31, 2006 (71 FR 5105).
    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, FMCSA will impose 
requirements on the 14 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

    Advocates for Highway and Auto Safety (Advocates) expressed 
opposition to FMCSA's policy to grant exemptions from the FMCSR, 
including the driver qualification standards. Specifically, Advocates: 
(1) Objects to the manner in which 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.
    Ms. Barb Sachau opposes the notion of granting vision exemptions to 
these drivers. She believes that two fully functional eyes are needed 
to drive safely.
    Ms. Sachau believes that the approval of vision exemptions make the 
roads much more dangerous.
    In regard to these comments, the discussion under the heading, 
``Basis for Exemption Determination,'' explains in detail the 
evaluation methods the Agency utilizes prior to granting an exemption 
to ensure that the granting of an exemption is likely to achieve an 
equivalent or greater level of safety than would be achieved without 
the exemption. To evaluate the effect of these exemptions on safety, 
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, 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.
    An anonymous individual stated that he/she is in support of the 
vision program due to the thorough screening that all applicants must 
go through.

Conclusion

    Based upon its evaluation of the 14 exemption applications, FMCSA 
exempts Nick D. Bacon, Donald G. Bostic, Jr., Johnny W. Bradford, Aaron 
C. Buck, James C. Davis, James H. Eldridge, Jr., Michael G. Gould, 
Albert L. Gschwind, Bruce A. Homan, Matthew J. Konecki, Rick P. Moreno, 
Roy J. Oltman, Monte L. Purciful, and Bernard J. Wood 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 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 FMCSA for a renewal under procedures in 
effect at that time.

    Issued on: April 10, 2006.
Larry W. Minor,
Director, Office of Bus and Truck Standards and Operations.
[FR Doc. 06-3587 Filed 4-13-06; 8:45 am]
BILLING CODE 4910-EX-P