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###### Department of Transportation

###### Federal Motor Carrier Safety Administration 

          - [Docket No. FMCSA-2000-7363] 

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT. 

# ACTION:

Notice of final disposition. 

# SUMMARY:

The FMCSA announces its decision to exempt 70 individuals from the vision requirement in 49 CFR 391.41(b)(10). 

# DATES:

December 8, 2000. 

# FOR FURTHER INFORMATION CONTACT:

For information about the vision exemptions in this notice, Ms. Sandra Zywokarte, Office of Bus and Truck Standards and Operations, (202) 366-2987; for information about legal issues related to this notice, Mr. Joseph Solomey, Office of the Chief Counsel, (202) 366-1374, FMCSA, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 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 

Seventy-two individuals petitioned the FMCSA for an exemption of the vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of commercial motor vehicles (CMVs) in interstate commerce. They are, Henry Wayne Adams, Willie F. Adams, Fernando Aquilera, Louis Edward Aldrige, Larry Neal Arrington, David Ball, Delbert Ronnie Bays, Rosa C. Beaumont, Jerry A. Bechtold, Robert F. Berry, James A. Bright, Robert R. Buis, David Dominick Bungori, Ronzie L. Carroll, Richard S. Carter, Lynn A. Childress, Kevin L. Cole, David R. Cox, Gerald Wade Cox, Dempsey Leroy Crawhorn Jr., Thomas P. Cummings, Cedric E. Foster, Rosalie A. Gifford, Eugene Anthony Gitzen, Donald Grogan, Elmer Harper, Peter L. Haubruck, Joe Marvin Hill, Brian L. Houle, Christopher L. Humphries, Craig C. Irish, Donald R. Jackson, Nelson V. Jaramillo, Daryl A. Jester, Joseph Vernon Johns, Jimmie W. Judkins, Kurth A. Kapke, Johnny M. Kruprzak, Charles R Kuderer, Thomas D. Laws, Demetrio Lozano, Wayne Mantela, Kenneth D. May, Jimmy R. Millage, Harold J. Mitchell, Gordon L. Nathan, Jerry L. New, Bernice Ray Parnell, Aaron Pennington, Clifford C. Priesmeyer, George S Rayson, Kevin D. Reece, Franklin Reed, Arthur A. Sappington, James L. Schneider, Patrick W. Shea, Carl B. Simonye, Ernie Sims, William H Smith, Paul D. Spalding, Richard Allen Strange, Steven Carter Thomas, George Walter Thornhill, Rick N. Ulrich, Roy F. Varnado, Henry Lee Walker, Larry D. Wedekind, Daniel Wilson, Emmett E. Windhorst, Wonda Lue Wooten, Thomas Long and Gary Bryan. 

Under 49 U.S.C. 31315 and 31136(e), the FMCSA may grant an exemption for a renewable 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.” Accordingly, the FMCSA evaluated the petitions on their merits and made a preliminary determination that the exemptions should be granted. On July 25, 2000, the agency published a notice of its preliminary determination and requested comments from the public (65 FR 45817). The comment period closed on August 24, 2000. Two comments were received, and their contents were carefully considered by the FMCSA in reaching the final decision to grant the petitions. 

                    In the case of applicant Kevin Cole, the FMCSA has denied Mr. Cole's request for an exemption from the vision requirements of 49 CFR 391.41(b)(10). Mr. Cole was notified previous to this announcement by letter of his denial. The purpose of publishing his denial here is simply to comply with 49 U.S.C. 31315(b)(4)(c), by periodically publishing in the                     **Federal Register**                     the names of persons denied exemptions and the reasons for such denials.                 

After the agency published its preliminary determination to grant Mr. Cole an exemption, he indicated in a conversation with a member of our staff on August 2, 2000, that he had not driven a CMV during the required 3-year period. Therefore, the FMCSA is unable to conclude that granting him an exemption is likely to achieve a level of safety equal to that existing without the exemption as required by 49 U.S.C. 31315 and 31136(e). In the case of applicant Joe Marvin Hill, Mr. Hill passed away. 

## Vision and Driving Experience of the Applicants 

The vision requirement 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 FHWA 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, FHWA-98-4334.) The panel's conclusion supports the FMCSA's (and previously the FHWA's) view that the present 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.                           ( print page 77067)    

The 70 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 26 of the applicants were either born with their vision impairments or have had them since childhood. The 26 individuals who sustained their vision condition as adults have had them for periods ranging from 8 to 36 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, can perform all the tasks necessary to operate a CMV. The doctors' opinions are supported by the applicants' possession of a valid commercial driver's license (CDL) or non-CDL to operate a CMV. Before issuing a CDL, States subject drivers to knowledge and performance tests designed to evaluate their qualifications to operate the 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. The Federal interstate qualification standards, however, require more. 

While possessing a valid CDL or non-CDL, these 70 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 42 years. In the past 3 years, the 70 drivers had 13 convictions for traffic violations among them. Eight of these convictions were for speeding. The other convictions consisted of: “Failure to obey traffic signal”; “Unauthorized towing”; “Expiration/no drivers license”; “Failure to yield the right of way to an emergency vehicle” and; “Load dropping/shifting/escaping.” Four drivers were involved in accidents in their CMVs, but did not receive a citation. 

Except for two applicants (Thomas J. Long and Gary Bryan), the qualifications, experience, and medical condition of each applicant were stated and discussed in detail in a July 25, 2000, notice (65 FR 45817). The qualifications of Mr. Long were stated in an April 14, 2000, notice (65 FR 20245) and Mr. Bryan's were stated in a May 23, 2000, notice (65 FR 33406). Since docket comments did not focus on the specific merits or qualifications of any applicant, we have not repeated the individual profiles here. With three exceptions, our summary analysis of the applicants as a group is supported by the information published at 65 FR 45817, 65 FR 20245 and 65 FR 33406. 

Mr. Long's speeding conviction in a CMV was not reported in the April 14, 2000, notice. The ticket showed he was driving 75 mph in a 45 mph zone. Mr. Long has no accidents or other convictions in a CMV on his driving record for the 3-year period. 

A final decision regarding Mr. Bryan's application for a vision exemption was delayed pending receipt of a copy of his Utah motor vehicle record (MVR). He had held a Utah license during the 3-year review period, before moving to Montana. Mr. Bryan faxed us a copy of his Utah MVR on August 28, 2000. His official driving record from Utah and Montana show no accidents and no convictions for moving violations in a CMV for the last 3 years. 

In Mr. May's case, his August 29 speeding conviction in a CMV was not reported in the July 25, 2000 notice. The citation showed he was driving 67 mph in a 55 mph zone. Mr. May has no accidents or other convictions in a CMV on his driving record for the 3-year period. 

## 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 these drivers to drive in interstate commerce as opposed to restricting them 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. 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 accidents and traffic violations. Copies of the studies have been added to the docket (FHWA-98-3637). 

We believe we can properly apply the principle to monocular drivers because data from the vision waiver 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.) 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 accident 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 accident proneness from accident 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 accidents. (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 accident 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 70 applicants, we note that cumulatively the applicants have had only four accidents and 13 traffic violations in the last 3 years. None of the accidents resulted in the issuance of a citation against the applicant. 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                           ( print page 77068)                        concludes their ability to drive safely can be projected into the future.                 

We believe the applicants' intrastate driving experience provides 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 exist on interstate highways. Faster reaction to traffic and traffic signals is generally required because distances are more compact than on highways. 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 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 will grant the exemptions for the 2-year period allowed by 49 U.S.C. 31315 and 31136(e). 

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 70 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, retains a copy in his/her driver qualification file if he/she is self-employed. The driver must also have a copy of the certification on his/her person while 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. 

The Advocates for Highway and Auto Safety (AHAS) expresses continued opposition to the FMCSA's policy to grant exemptions from the Federal Motor Carrier Safety Regulations (FMCSRs), including the driver qualification standards. Specifically, the AHAS: (1) Asks the agency to clarify the consistency of the exemption application information, (2) objects to the agency's reliance on conclusions drawn from the vision waiver program, (3) raises procedural objections to this proceeding, (4) claims the agency has misinterpreted statutory language on the granting of exemptions (49 U.S.C. 31315 and 31136(e)), and finally, (5) suggests that a recent Supreme Court decision affects the legal validity of vision exemptions. 

The issues raised by the AHAS 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) and 65 FR 57230 (September 21, 2000). We will not address these points again herein but refer interested parties to those earlier discussions. 

The Licensing Operations of the California Department of Motor Vehicles (DMV) submitted the following comments: “California is opposed to the granting of exemptions due to Federal Motor Carrier Safety Regulations (FMCSRs) Section 381.600 which states that once a waiver, exemption, or pilot program is authorized it preempts any State law or regulation that conflicts with or is inconsistent with the waiver, exemption or pilot program with respect to a person operating under the waiver or exemption or participating in the pilot program. For traffic safety, California restricts all CDL drivers who do not meet the medical requirements from operating buses, transporting any material that requires placards or markings, and interstate commerce.” Although ambiguous, this appears to mean that the CDLs issued to drivers who do not comply with the physical qualification standards in 49 CFR Part 391 include special prohibitions on operating (1) buses or vehicles transporting placardable quantities of hazardous materials in intrastate commerce, and (2) all vehicles in interstate commerce. California CDL holders who fail to meet the standards in 391.41 are thus limited to intrastate commerce, but even they are not allowed to drive buses or hazmat vehicles. 

The California DMV has not opposed the granting of exemptions in the past, but its Legal Branch has now concluded that once an exemption is granted, the State would not be able to continue prohibiting Federally exempted drivers holding California CDLs from operating in interstate commerce, even if they were transporting passengers or hazardous materials. 

Under the Commercial Motor Vehicle Safety Act of 1986, the FMCSA sets minimum testing and licensing standards for drivers of commercial motor vehicles (CDL-CMVs), and the States issue CDLs in accordance with those standards. In most cases, a State may therefore establish more stringent CDL testing and licensing standards, as California appears to have done. However, Sec. 4007(a) of the Transportation Equity Act for the 21st Century (TEA-21), now codified at 49 U.S.C. 31315, preempts “any State law or regulation that conflicts with or is inconsistent with the * * * exemption * * *” 49 U.S.C. 31315(d). Under the normal canons of statutory interpretation, the Federal preemption statute supersedes State authority to set more stringent CDL standards because section 31315(d) is both subsequent to and more specific than the CMVSA. 

A driver who intended to operate in interstate commerce and held an FMCSA vision exemption could lawfully certify to California under 49 CFR 383.71(a)(1) that he or she met the physical qualification standards of section 391.41. The preemption required by section 31315(d) and 49 CFR 381.600 means that the driver could not be denied an unrestricted CDL by California because of deficient vision or prohibited from driving any kind of vehicle in interstate commerce (though it could issue a CDL valid for no more than the period of the FMCSA exemption). California would of course be required to ensure that the applicant passed the general CDL examination and the skills/knowledge tests required for any endorsement the driver is seeking. 

                    On the other hand, an applicant for a CDL who intended to operate in intrastate commerce could not obtain an FMCSA exemption, since the agency has jurisdiction, for purposes of the physical qualification standards, only over drivers in interstate commerce. The Motor Carrier Safety Assistance Program (MCSAP) regulations allow participating States (including California) to set lower physical qualification standards for drivers operating exclusively in                           ( print page 77069)                        intrastate commerce 49 CFR 350.341 (h), see 65 FR 15092, at 15109, March 21, 2000. They are not required to do so, however. California could therefore issue a driver who did not meet the standards of section 391.41 an intrastate CDL (                    *i.e.,*                     one valid only within the State) which prohibited the driving of buses or hazmat vehicles.                 

The California DMV further commented that it would continue to oppose all requests for waivers or exemptions that did not prohibit the driver from transporting passengers and hazardous materials. The FMCSA stands by its previous response to California on this issue (see 65 FR 161, January 3, 2000). We believe it is unnecessary to impose any further restrictions on these drivers, since a waiver of or exemption from 49 CFR 391.41(b)(10) expresses the agency's conclusion that the driver will likely perform just as safely as a driver who met the standard. 

                    Notwithstanding the FMCSA's ongoing review of the vision standard, as evidenced by the medical panel's report dated October 16, 1998, and filed in the docket (FHWA-98-4334), the FMCSA must comply with                     *Rauenhorst*                     v.                     *United States Department of Transportation, Federal Highway Administration,*                     95 F.3d 715 (8th Cir. 1996), and grant individual exemptions under standards that are consistent with public safety. Meeting those standards, the 70 veteran drivers in this case have demonstrated to our satisfaction that they can continue to operate a CMV with their current vision safely in interstate commerce because they have demonstrated their ability in intrastate commerce. Accordingly, they qualify for an exemption under 49 U.S.C. 31315 and 31136(e).                 

## Conclusion 

                    After considering the comments to the docket and based upon its evaluation of the 70 exemption applications in accordance with the                     *Rauenhorst*                     decision, the FMCSA exempts Henry Wayne Adams, Willie F. Adams, Fernando Aquilera, Louis Edward Aldrige, Larry Neal Arrington, David Ball, Delbert Ronnie Bays, Rosa C. Beaumont, Jerry A. Bechtold, Robert F. Berry, James A. Bright, Robert R. Buis, David Dominick Bungori, Ronzie L. Carroll, Richard S. Carter, Lynn A. Childress, David R. Cox, Gerald Wade Cox, Dempsey Leroy Crawhorn Jr., Thomas P. Cummings, Cedric E. Foster, Rosalie A. Gifford, Eugene Anthony Gitzen, Donald Grogan, Elmer Harper, Peter L. Haubruck, Brain L. Houle, Christopher L. Humphries, Craig C. Irish, Donald R. Jackson, Nelson V. Jaramillo, Daryl A. Jester, Joseph Vernon Johns, Jimmie W. Judkins, Kurth A. Kapke, Johnny M. Kruprzak, Charles R Kuderer, Thomas D. Laws, Demetrio Lozano, Wayne Mantela, Kenneth D. May, Jimmy R. Millage, Harold J. Mitchell, Gordon L. Nathan, Jerry L. New, Bernice Ray Parnell, Aaron Pennington, Clifford C. Priesmeyer, George S Rayson, Kevin D. Reece, Franklin Reed, Arthur A. Sappington, James L. Schneider, Patrick W. Shea, Carl B. Simonye, Ernie Sims, William Smith, Paul D. Spalding, Richard Allen Strange, Steven Carter Thomas, George Walter Thornhill, Rick N. Ulrich, Roy F. Varnado, Henry Lee Walker, Larry D. Wedekind, Daniel Wilson, Emmett E. Windhorst, Wonda Lue Wooten, Thomas Long, and Gary Bryan from the vision requirement in 49 CFR 391.41(b)(10), subject to the following conditions:                 

(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 its driver qualification file, or keep a copy in his/her driver qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving so it may be presented to a duly authorized Federal, State, or local enforcement official. 

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. 

Authority:49 U.S.C. 322, 31315 and 31136; 49 CFR 1.73. 

Issued on: December 4, 2000. 

Brian M. McLaughlin, 

Director, Office of Policy Plans and Regulations. 

[FR Doc. 00-31347 Filed 12-7-00; 8:45 am] 

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