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###### Department of Transportation

###### Federal Motor Carrier Safety Administration 

          - [Docket Nos. FMCSA-2000-7918 and FMCSA-2001-9258] 

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT. 

# ACTION:

Notice of final disposition.

# SUMMARY:

The FMCSA announces its decision to exempt 41 individuals from the vision requirement in 49 CFR 391.41(b)(10). 

# DATES:

June 26, 2001. 

# 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 

                    Forty-one individuals petitioned the FMCSA for an exemption from the                           ( print page 33991)                        vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of commercial motor vehicles (CMVs) in interstate commerce. They are: Jerry T. Branam, Daniel R. Brewer, William A. Burgoyne, Brett L. Condon, Mark W. Coulson, Thomas W. Craig, Myron D. Dixon, Terry W. Dooley, Don W. Dotson, James W. Harris, Larry M. Hawkins, George A. Hoffman III, Lee P. Holt, Steve L. Hopkins, Donald A. Jahr, Alfred C. Jenkins, Donald L. Jensen, Robert L. Joiner, Jr., James P. Jones, Clarence R. Keller, Bruce E. King, Larry J. Lang, Dennis D. Lesperance, Earnest W. Lewis, John W. Locke, Herman G. Lovell, Ronald L. Maynard, Larry T. Morrison, Gayle G. Olson, Eddie L. Paschal, Thomas G. Raymond, Richard S. Rehbein, David E. Sanders, Richard C. Simms, David B. Speller, Royal H. Stephens, Tyson C. Stone, Lynn D. Veach, Kevin L. Wickard, Charles M. Wilkins, and Michael C. Wines.                 

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 has evaluated the 41 petitions on their merits and made a determination to grant the exemptions to all of them. On April 3, 2001, the agency published notice of its receipt of applications from 38 of these individuals, and requested comments from the public (66 FR 17743). The comment period closed on May 3, 2001. In the cases of Mr. Burgoyne, Mr. Dotson, and Mr. Raymond, the agency published notice of receipt of their applications along with 62 other applications, and requested comments from the public on November 3, 2000 (65 FR 66286). The decisions on their applications were not made earlier because the agency had received additional information from its ongoing checks of their motor vehicle records and was evaluating that information (66 FR 13826, March 7, 2001). The FMCSA received one comment in response to the notice of 38 applications on April 3, 2001, and two comments in response to the notice of 65 applications on November 3, 2000. One comment received from the November 3, 2000, notice pertained to an applicant not being considered here, and was addressed at 66 FR 13828 (March 7, 2001). The contents of the other two comments were carefully considered in reaching the final decision to grant the petitions in this notice. 

## 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 Federal Highway Administration (FHWA), the predecessor agency to the FMCSA, has undertaken studies to determine if this vision standard should be amended. The final report from the medical panel recommended 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. 

The 41 applicants fall into this category. They are unable to meet the vision standard in one eye for various reasons, including amblyopia, corneal and retinal scars, and loss of an eye due to trauma. In most cases, their eye conditions were not recently developed. All but 13 of the applicants were either born with their vision impairments or have had them since childhood. The 13 individuals who sustained their vision conditions as adults have had them for periods ranging from 4 to 40 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 commercial motor vehicle (CMV). The doctors' opinions are supported by the applicants' possession of valid commercial driver's licenses (CDLs) or non-CDLs that allow them 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. The Federal interstate qualification standards, however, require more. 

While possessing a valid CDL or non-CDL, these 41 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 40 years. In the past 3 years, the drivers had 8 convictions for traffic violations among them. Five of these convictions were for Speeding, two were for Failure to Obey Traffic Instructions Sign/Device, and one was for Following Too Closely. Two drivers were involved in accidents in their CMVs, but did not receive a citation. 

The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in the April 3, 2001, and November 3, 2000, notices (66 FR 17743 and 65 FR 66286). Since the docket comments did not focus on the specific merits or qualifications of any applicant, we have not repeated the individual profiles here. One change is noted: Mr. Burgoyne's driving record shows he was involved in a CMV accident after publication of the notice on November 3, 2000. In a very heavy snowstorm, the vehicle he was driving was hit in the rear by another vehicle. He was not cited for the accident. Our summary analysis of the applicants as a group is supported by the information published at 66 FR 17743 and 65 FR 66286. 

## 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                           ( print page 33992)                        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 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). 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 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 41 applicants, we note that cumulatively the applicants have had only 2 accidents and 8 traffic violations in the last 3 years. Neither of the accidents resulted in the issuance of a citation against the applicants. 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 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 exists 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 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 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 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 

The FMCSA received one comment in response to the notice of 38 applications on April 3, 2001 (66 FR 17743), and two comments in response to the notice of 65 applications on November 3, 2000 (65 FR 66286). One comment received from the November 3, 2000, notice pertained to an applicant not being considered here, and was addressed at 66 FR 13828 (March 7, 2001). The other comments were considered for this notice and are discussed below. 

Comments were received from the Advocates for Highway and Auto Safety (AHAS) in response to both notices of applications. The 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) 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 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), 65 FR 57230 (September 21, 2000), and 66 FR 13825 (March 7, 2001). We will not address these points again                           ( print page 33993)                        here, but refer interested parties to those earlier discussions.                 

                    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 this docket, 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 41 veteran drivers in this case have demonstrated to our satisfaction that they can continue to operate a CMV with their current vision condition 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 41 exemption applications in accordance with the Rauenhorst decision, the FMCSA exempts Jerry T. Branam, Daniel R. Brewer, William A. Burgoyne, Brett L. Condon, Mark W. Coulson, Thomas W. Craig, Myron D. Dixon, Terry W. Dooley, Don W. Dotson, James W. Harris, Larry M. Hawkins, George A. Hoffman III, Lee P. Holt, Steve L. Hopkins, Donald A. Jahr, Alfred C. Jenkins, Donald L. Jensen, Robert L. Joiner, Jr., James P. Jones, Clarence R. Keller, Bruce E. King, Larry J. Lang, Dennis D. Lesperance, Earnest W. Lewis, John W. Locke, Herman G. Lovell, Ronald L. Maynard, Larry T. Morrison, Gayle G. Olson, Eddie L. Paschal, Thomas G. Raymond, Richard S. Rehbein, David E. Sanders, Richard C. Simms, David B. Speller, Royal H. Stephens, Tyson C. Stone, Lynn D. Veach, Kevin L. Wickard, Charles M. Wilkins, and Michael C. Wines 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 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, 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 rescinded earlier by the FMCSA. The exemption will be rescinded 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; and 49 CFR 1.73. 

Issued on: June 21, 2001. 

Brian M. McLaughlin, 

Acting Deputy Administrator. 

[FR Doc. 01-16067 Filed 6-22-01; 11:28 am] 

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