[Federal Register: May 30, 2002 (Volume 67, Number 104)]

[Notices]               

[Page 37907-37910]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr30my02-172]                         



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DEPARTMENT OF TRANSPORTATION



Federal Motor Carrier Safety Administration



[Docket No. FMCSA-2002-11714]



 

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 30 individuals from the 

vision requirement in 49 CFR 391.41(b)(10).



DATES: May 30, 2002.



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; FMCSA, Department of 

Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office 

hours are from 7:45 a.m. to 4:15 p.m.,



[[Page 37908]]



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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dmses.dot.gov.



Background



    Thirty individuals petitioned FMCSA for an exemption from the 

vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of 

commercial motor vehicles (CMVs) in interstate commerce. They are: 

Ronald M. Aure, Steven S. Bennett, Joe W. Brewer, Trixie L. Brown, 

James D. Coates, Michael D. DeBerry, James W. Ellis, IV, John E. 

Engstad, Jose D. Espino, Dan M. Francis, David W. Grooms, Joe H. 

Hanniford, David A. Inman, Harry L. Jones, Teddie W. King, Richard B. 

Leonard, Robert P. Martinez, Michael L. McNeish, David E. Miller, Bobby 

G. Minton, Lawrence C. Moody, Stanley W. Nunn, William R. Proffitt, 

Charles L. Schnell, Charles L. Shirey, James R. Spencer, Sr., David E. 

Steinke, Kevin R. Stoner, Carl J. Suggs, and James A. Torgerson.

    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 30 petitions on their merits and 

made a determination to grant the exemptions to all of them. On April 

2, 2002, the agency published notice of its receipt of applications 

from these 30 individuals, and requested comments from the public (67 

FR 15662). The comment period closed on May 2, 2002. One comment was 

received, and its contents were carefully considered by FMCSA in 

reaching the final decision to grant the petitions.



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) 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[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 

FMCSA's (and previously FHWA's) view that the present 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 30 applicants fall into this category. They are unable to meet 

the vision standard in one eye for various reasons, including 

amblyopia, macular scar, 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 8 to 34 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 

doctor's opinions are supported by the applicant 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. The Federal 

interstate qualification standards, however, require more.

    While possessing a valid CDL or non-CDL, these 30 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 43 

years. In the past 3 years, the 30 drivers had 13 convictions for 

traffic violations among them. Seven of these convictions were for 

Speeding, and four were for ``Failure to Obey Traffic Sign.'' The other 

convictions consisted of: ``Traveling in the Car Pool Lane''; and 

``Drive on Wrong Side of Undivided Street/Road.'' Two drivers were 

involved in an accident in a CMV, but did not receive a citation.

    The qualifications, experience, and medical condition of each 

applicant were stated and discussed in detail in an April 2, 2002, 

notice (67 FR 15662). Since there were no docket comments on the 

specific merits or qualifications of any applicant, we have not 

repeated the individual profiles here. Our summary analysis of the 

applicants as a group is supported by the information published at 67 

FR 15662.



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 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, FMCSA 

considered not only the medical reports about the applicant's 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 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



[[Page 37909]]



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 30 applicants receiving an exemption, we note that cumulatively the 

applicants have had only 2 accidents and 13 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 applicant's 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 applicant's 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 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, 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, FMCSA will impose 

requirements on the 30 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



    FMCSA received one comment in this proceeding. The comment was 

considered and is discussed below.

    Advocates for Highway and Auto Safety (Advocates) expresses 

continued opposition to FMCSA's policy to grant exemptions from the 

Federal Motor Carrier Safety Regulations, 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 recent 

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



    After considering the comment to the docket and based upon its 

evaluation of the 30 exemption applications in accordance with 

Rauenhorst v. United States Department of Transportation, Federal 

Highway Administration, 95 F.3d 715 (8th Cir. 1996), FMCSA exempts 

Ronald M. Aure, Steven S. Bennett, Joe W. Brewer, Trixie L. Brown, 

James D. Coates, Michael D. DeBerry, James W. Ellis, IV, John E. 

Engstad, Jose D. Espino, Dan M. Francis, David W. Grooms, Joe H. 

Hanniford, David A. Inman, Harry L. Jones, Teddie W. King, Richard B. 

Leonard, Robert P. Martinez, Michael L. McNeish, David E. Miller, Bobby 

G. Minton, Lawrence C. Moody, Stanley W. Nunn, William R. Proffitt, 

Charles L. Schnell, Charles L. Shirey, James R. Spencer, Sr., David E. 

Steinke, Kevin R. Stoner, Carl J. Suggs, and James A. Torgerson 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



[[Page 37910]]



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 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: May 24, 2002.

Brian M. McLaughlin,

Associate Administrator for Policy and Program Development.

[FR Doc. 02-13553 Filed 5-29-02; 8:45 am]

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