[Federal Register Volume 66, Number 123 (Tuesday, June 26, 2001)]
[Notices]
[Pages 33990-33993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16067]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

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


Qualification of Drivers; Exemption Applications; Vision

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

ACTION: Notice of final disposition.

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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

[[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 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 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 deg. to 120 deg., 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

[[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

[[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]
BILLING CODE 4910-EX-P