[Federal Register Volume 71, Number 72 (Friday, April 14, 2006)]
[Notices]
[Pages 19602-19604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-5592]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2005-23773]


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 19 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., 
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 February 9, 2006, FMCSA published a Notice of receipt of 
exemption applications from 19 individuals, and requested comments from 
the public (71 FR 6826). The 19 individuals petitioned FMCSA for 
exemptions from the vision requirement in 49 CFR 391.41(b)(10), which 
applies to drivers of CMVs in interstate

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commerce. They are: Scott E. Ames, Otto J. Ammer, Jr., Harold J. 
Barley, Jr., Arthur L. Fields, John W. Foggy, Rupert G. Gilmore, III, 
George R. Gorsuch, Jr., Walter R. Hardiman, Sergio A. Hernandez, Burt 
A. Hughes, Fredrick C. Ingles, Clyde Johnson, III, Paul E. Lindon, 
Aaron G. Lougher, Joe S. Nix, IV, Luis F. Saavedra, Raul R. Torres, 
Darwin J. Thomas and Darel G. Wagner.
    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 19 applications on their merits 
and made a determination to grant exemptions to all of them. The 
comment period closed on March 13, 2006.

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 a 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 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 19 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, aphakia, cataract, macular 
scarring 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 19 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 19 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 3 to 30 
years. In the past 3 years, one of the drivers had a conviction for 
failure to obey a traffic sign and none were involved in crashes.
    The qualifications, experience, and medical condition of each 
applicant were stated and discussed in detail in the February 9, 2006 
Notice (71 FR 6826).

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 American Statistical 
Association, June 1971.) A 1964 California Driver Record Study prepared 
by the California

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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 19 applicants, we note that one of the applicants had a conviction 
for traffic violation, failure to obey a traffic sign. None of the 
applicants were involved in crashes. 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 19 applicants listed in the Notice of 
February 9, 2006 (71 FR 6826).
    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 19 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) express continued 
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.

Conclusion

    Based upon its evaluation of the 19 exemption applications, FMCSA 
exempts Scott E. Ames, Otto J. Ammer, Jr., Harold J. Barley, Jr., 
Arthur L. Fields, John W. Foggy, Rupert G. Gilmore, III, George R. 
Gorsuch, Jr., Walter R. Hardiman, Sergio A. Hernandez, Burt A. Hughes, 
Fredrick C. Ingles, Clyde Johnson, III, Paul E. Lindon, Aaron G. 
Lougher, Joe S. Nix, IV, Luis F. Saavedra, Raul R. Torres, Darwin J. 
Thomas and Darel G. Wagner 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: March 31, 2006.
Rose A. McMurray,
Associate Administrator, Policy and Program Development.
[FR Doc. E6-5592 Filed 4-13-06; 8:45 am]
BILLING CODE 4910-EX-P