62742 Federal Register / Vol. 69, No. 207 / Wednesday, October 27, 2004 / Notices 

54519, 67 FR 67234, 64 FR 54948, 65 FR 

159, 65 FR 20245, 65 FR 57230, 67 FR 

57266, 65 FR 33406, 65 FR 57234, 67 FR 

46016, 67 FR 57267). Each of these 16 

applicants has requested timely renewal 

of the exemption and has submitted 

evidence showing that the vision in the 

better eye continues to meet the 

standard specified at 49 CFR 

391.41(b)(10) and that the vision 

impairment is stable. In addition, a 

review of each record of safety while 

driving with the respective vision 

deficiencies over the past two years 

indicates each applicant continues to 

meet the vision exemption standards. 

These factors provide an adequate basis 

for predicting each driver’s ability to 

continue to drive safely in interstate 

commerce. Therefore, the FMCSA 

concludes that extending the exemption 

for each renewal applicant for a period 

of two years is likely to achieve a level 

of safety equal to that existing without 

the exemption. 

Comments 

The FMCSA will review comments 

received at any time concerning a 

particular driver’s safety record and 

determine if the continuation of the 

exemption is consistent with the 

requirements at 49 U.S.C. 31315 and 

31136(e). However, the FMCSA requests 

that interested parties with specific data 

concerning the safety records of these 

drivers submit comments by November 

26, 2004. 

In the past the FMCSA has received 

comments from Advocates for Highway 

and Auto Safety (Advocates) expressing 

continued opposition to the FMCSA’s 

procedures for renewing exemptions 

from the vision requirement in 49 CFR 

391.41(b)(10). Specifically, Advocates 

objects to the agency’s extension of the 

exemptions without any opportunity for 

public comment prior to the decision to 

renew, and reliance on a summary 

statement of evidence to make its 

decision to extend the exemption of 

each driver. 

The issues raised by Advocates were 

addressed at length in 69 FR 51346 

(August 18, 2004). The FMCSA 

continues to find its exemption process 

appropriate to the statutory and 

regulatory requirements.

Issued on: October 20, 2004. 

Rose A. McMurray, 

Associate Administrator, Policy and Program 

Development.

[FR Doc. 04–23967 Filed 10–26–04; 8:45 am] 

BILLING CODE 4910–EX–P

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety 

Administration 

[FMCSA Docket No. FMCSA–2004–18885] 

Qualification of Drivers; Exemption 

Applications; Vision

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT.

ACTION: Notice of final disposition.

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: October 27, 2004.

FOR FURTHER INFORMATION CONTACT:

Maggi Gunnels, Office of Bus and Truck 

Standards and Operations, (202) 366–

2987, 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 September 1, the FMCSA 

published a notice of receipt of 

exemption applications from 29 

individuals, and requested comments 

from the public (69 FR 53493). 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: Paul G. Albrecht, 

David W. Brown, David J. Caldwell, 

Walden V. Clarke, Donald O. Clopton, 

Awilda S. Colon, Richard B. Eckert, 

Charles B. Edwards, Zane G. Harvey, Jr., 

Robert T. Hill, Dale E. Johnson, Jimmy 

D. Johnson II, Jeffrey M. Keyser, Donnie 

A. Kildow, Carl M. McIntire, John C. 

McLaughlin, Daniel A. McNabb, David 

G. Meyers, Thomas L. Oglesby, Michael 

J. Paul, Russell A. Payne, Rodney M. 

Pegg, Raymond E. Peterson, Zbigniew P. 

Pietranik, Dennis E. Pinkston, John C. 

Rodriguez, Robert B. Schmidt, Wesley L. 

Schoonover, and Charles E. Wood. 

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 October 1, 

2004. Two comments were received. 

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° 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°, 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, corneal 

and macular scars, and loss of an eye 

due to trauma. In most cases, their eye 

conditions were not recently developed. 

All but nine of the applicants were 

either born with their vision 

impairments or have had them since 

childhood. The nine individuals who 

sustained their vision conditions as 

Federal Register / Vol. 69, No. 207 / Wednesday, October 27, 2004 / Notices 62743

adults have had them for periods 

ranging from 4 to 44 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 nonCDL, 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 37 years. In the 

past 3 years, three of the drivers have 

had convictions for traffic violations. 

Four of these convictions were for 

speeding and one was for ‘‘failure to 

obey traffic sign.’’ Two 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 September 1, 2004, notice (69 FR 

53493). 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 69 FR 53496 indicating that 

applicant 19, Thomas L. Oglesby, 

reported he has driven straight trucks 

for 30 years, accumulating 2.4 million 

miles, is in error. The information 

should have indicated that Mr. Oglesby 

reported he has driven tractor-trailer 

combinations for 30 years, accumulating 

2.4 million miles. Our summary 

analysis of the applicants is supported 

by this correction and the information 

published on September 1, 2004 (69 FR 

53493). 

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 

29 applicants receiving an exemption, 

we note that the applicants have had 

only two crashes and five 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. 

62744 Federal Register / Vol. 69, No. 207 / Wednesday, October 27, 2004 / Notices 

31315 and 31136(e) to the 29 applicants 

listed in the notice of September 1, 2004 

(69 FR 53493). 

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 selfemployed. 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. 

Mr. William Whitaker did not 

comment on the receipt of applications 

for exemption, but requested 

information about applying for an 

exemption for himself. FMCSA is 

responding to him separately by letter. 

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 Paul G. Albrecht, David W. 

Brown, David J. Caldwell, Walden V. 

Clarke, Donald O. Clopton, Awilda S. 

Colon, Richard B. Eckert, Charles B. 

Edwards, Zane G. Harvey, Jr., Robert T. 

Hill, Dale E. Johnson, Jimmy D. Johnson 

II, Jeffrey M. Keyser, Donnie A. Kildow, 

Carl M. McIntire, John C. McLaughlin, 

Daniel A. McNabb, David G. Meyers, 

Thomas L. Oglesby, Michael J. Paul, 

Russell A. Payne, Rodney M. Pegg, 

Raymond E. Peterson, Zbigniew P. 

Pietranik, Dennis E. Pinkston, John C. 

Rodriguez, Robert B. Schmidt, Wesley L. 

Schoonover, and Charles E. 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 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: October 21, 2004. 

Rose A. McMurray, 

Associate Administrator, Policy and Program 

Development.

[FR Doc. 04–24061 Filed 10–26–04; 8:45 am] 

BILLING CODE 4910–EX–P

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration 

Petition for Waiver of Compliance 

In accordance with part 211 of Title 

49 Code of Federal Regulations (CFR), 

notice is hereby given that the Federal 

Railroad Administration (FRA) received 

a request for a waiver of compliance 

with certain requirements of its safety 

standards. The individual petition is 

described below, including the party 

seeking relief, the regulatory provisions 

involved, the nature of the relief being 

requested, and the petitioner’s 

arguments in favor of relief. 

Long Island Rail Road (Waiver Petition 

Docket Number FRA–2004–18854) 

The Long Island Rail Road (LIRR) 

seeks a waiver of compliance from 

certain provisions of the Railroad 

Locomotive Safety Standards, 49 CFR 

part 229. Specifically, LIRR requests 

relief from the requirements of 49 CFR 

229.27(a)(2) Annual Tests and 49 CFR 

229.29(a) Biennial Tests, applicable to a 

control group of five EMD DE/DM30–

AC locomotives equipped with 

Computer Controlled Brake I (CCB I) 

type brake equipment furnished by New 

York Air Brake Corporation (NYAB) of 

Watertown, New York. 

The five locomotives designated for 

the control group will be Model EMD 

DE/DM30–AC, built by General Motor’s 

Electro Motive Division (EMD), 

accepted new by LIRR in 1999, and 

equipped with NYAB’s CCB I brake 

equipment. The LIRR currently operates 

a fleet of forty six (46) of this model 

type(s) and configured locomotives. The 

current CCB I periodic brake equipment 

maintenance intervals are 1840 days 

(five years) in accordance with the FRA 

Docket Number 2000–7367. 

In October 2003, CCB I, from a 

randomly selected locomotive at the end 

of a five-year COT&S interval, was 

removed and sent to New York Air 

Brake for tests and a tear-down 

inspection. A test report of this 

equipment was submitted to the FRA 

from NYAB to comply with Section 

5.1.6 of ABT–3164 as related to the CCB 

I product five year COT&S 2000–7367 

waiver. In summary of that report, New 

York Air Brake noted that the LIRR’s 

CCB I air brake equipment was fully 

serviceable at five years of age. 

As a result of the NYAB report, the 

LIRR is seeking relief on the 1840 day 

(5 year) COT&S on five locomotive 

described as the ‘‘control group of 

locomotives’’. The control group of 

locomotives will be utilized as a test to 

determine CCB I brake condition when 

the maintenance cycle is extended past 

five-year maintenance interval. 

The control group of five locomotives 

will all have their COT&S extended past 

the 1840 (5 year) COT&S with the 

following proposed schedule: one 

locomotive to 2208 days (6 years), two 

locomotives to 2576 days (7 years), and 

the two remaining locomotives to 2944 

days (8 years). During the testing period 

for the control group, the remaining 

locomotives in the LIRR fleet will 

continue regularly scheduled periodic