FR Doc 03-32093

[Federal Register: December 31, 2003 (Volume 68, Number 250)]
[Notices]
[Page 75715-75717]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31de03-184]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2003-16241]

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 24 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: December 31, 2003.

FOR FURTHER INFORMATION CONTACT: Ms. Sandra Zywokarte, Office of Bus
and Truck Standards and Operations, (202) 366-2987, FMCSA, Department
of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001.
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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dmses.dot.gov.

Background

On October 30, 2003, the FMCSA published a Notice of its receipt of
applications from 24 individuals, and requested comments from the
public (68 FR 61857). The 24 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: Ronald G.
Austin, William E. Barrett, Eric D. Bennett, Zack Bradford, Sr., Rickey
C. Dalton, Dustin G. Davis, John K. DeGolier, Martiano L. Espinosa, Roy
M. Field, Derek T. Ford, James G. LaBair, Dennis A. Leschke, Lonnie
Lomax, Jr., Ernesto R. Martinez, Bennet G. Maruska, James T. McGinnis,
Gary L. Miller, Jack D. Miller, Ezequiel M. Ramirez, Carl W. Skinner,
Jr., Doyce J. Soriez, Peter D. Wehner, Howard W. Williams, and Jack E.
Wilson.
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 24 applications on their
merits and made a determination to grant the exemptions to all of them.
The comment period closed on December 1, 2003. One comment was
received, and its contents were carefully considered by the FMCSA in
reaching the final decision to grant the exemptions.

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[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 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[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 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 24 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 11 of the applicants were either born with their vision impairments
or have had them since childhood. The 11 individuals who sustained
their vision conditions as adults have had them for periods ranging
from 4 to 35 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 non-CDL, these 24 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 49
years. In the past 3 years, four of the drivers have had

[[Page 75716]]

convictions for traffic violations. Three of these convictions were for
speeding and one was for ``failure to yield right of way to an
emergency vehicle.'' 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 October 30, 2003
notice (68 FR 61857). 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 is supported by the information published at 68 FR 61857.

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 have been added to the docket (FHWA-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 24 applicants receiving an exemption, we note that the applicants
have had only two crashes and four 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 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. 31315 and
31136(e) to the 24 applicants listed in the October notice (68 FR
61857).
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 24 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 this proceeding. The comment was
considered and is discussed below.

[[Page 75717]]

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

After considering the comments to the docket and based upon its
evaluation of the 24 exemption applications, the FMCSA exempts Ronald
G. Austin, William E. Barrett, Eric D. Bennett, Zack Bradford, Sr.,
Rickey C. Dalton, Dustin G. Davis, John K. DeGolier, Martiano L.
Espinosa, Roy M. Field, Derek T. Ford, James G. LaBair, Dennis A.
Leschke, Lonnie Lomax, Jr., Ernesto R. Martinez, Bennet G. Maruska,
James T. McGinnis, Gary L. Miller, Jack D. Miller, Ezequiel M. Ramirez,
Carl W. Skinner, Jr., Doyce J. Soriez, Peter D. Wehner, Howard W.
Williams, and Jack E. Wilson 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 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: December 12, 2003.
Rose A. McMurray,
Associate Administrator, Policy and Program Development.
[FR Doc. 03-32093 Filed 12-30-03; 8:45 am]