[Federal Register Volume 71, Number 139 (Thursday, July 20, 2006)]
[Notices]
[Pages 41310-41313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-11556]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2005-24783]


Qualification of Drivers; Exemption Applications; Vision

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

ACTION: Notice of final disposition.

-----------------------------------------------------------------------

SUMMARY: FMCSA announces its decision to exempt 47 individuals from the 
vision requirement in the Federal Motor Carrier Safety Regulations 
(FMCSRs). The exemptions will enable these individuals to operate 
commercial motor vehicles (CMVs) in interstate commerce without meeting 
the prescribed vision standard. The Agency has concluded that granting 
these exemptions will provide a level of safety that is equivalent to, 
or greater than, the level of safety maintained without the exemptions 
for these CMV drivers.

DATES: The exemptions are effective July 20, 2006. The exemptions 
expire on July 21, 2008.

FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Chief, Physical 
Qualifications Division, (202) 366-4001, [email protected], FMCSA, 
Department of Transportation, 400 Seventh Street, SW., Room 8301, 
Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m.,

[[Page 41311]]

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.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov and/or Room PL-401 on the 
plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Privacy Act: Anyone may search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or of the person signing the comment, if 
submitted on behalf of an association, business, labor union, or other 
entity). You may review DOT's complete Privacy Act Statement in the 
Federal Register (65 FR 19477, Apr. 11, 2000). This statement is also 
available at http://dms.dot.gov.

Background

    On June 2, 2006, FMCSA published a Notice of receipt of exemption 
applications from 47 individuals, and requested comments from the 
public (71 FR 32183). The 47 individuals applied for exemptions from 
the vision requirement in 49 CFR 391.41(b)(10), for drivers who operate 
CMVs in interstate commerce. They are: Jawad K. Al-Shaibani, Kenneth J. 
Bernard, Allen G. Bors, Douglas, L. Brazil, John E. Breslin, Marcus S. 
Burkholder, Raymond L. Brush, Scott F. Chalfant, Leroy A. Chambers, 
Harvis P. Cosby, Joseph H. Fowler, Francisco Espinal, Brian G. Hagen, 
Edward J. Hess, Jr., Ralph E. Holmes, Timothy B. Hummel, Larry L. 
Jarvis, Charles E. Johnston, Volga Kirkwood, Richard M. Kriege, David 
C. Leoffler, John C. Lewis, Patrick E. Martin, Leland K. McAlhaney, 
Willam C. Mohr, Roger Moody, Larry A. Nienhuis, Corey L. Paraf, John J. 
Pribanic, Ronald M. Price, John P. Raftis, Matthew B. Richardson, Bruce 
G. Robinson, Alton M. Rutherford, Wayne N. Savoy, Richard A. Schneider, 
Joseph B. Shaw, Jr., David W. Skillman, Thomas G. Smith, Sandra J. 
Sperling, Kenneth C. Steele, Ryan K. Steelman, Paul D. Totty, Charles 
V. Tracey, Duane L. Tysseling, Richard A. Westfall, and Leonard R. 
Wilson.
    Under 49 U.S.C. 31136(e) and 31315, 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 47 applications on their merits 
and made a determination to grant exemptions to all of them. The 
comment period closed on July 3, 2006.

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 a 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)).
    FMCSA 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 47 exemption 
applicants listed in this Notice are in this category. They are unable 
to meet the vision standard in one eye for various reasons, including 
amblyopia, coloboma, macular scar, aphakia, keratoconus, retinal 
detachment, cataract, corneal scaring, prosthesis, and loss of vision 
due to trauma. In most cases, their eye conditions were not recently 
developed. All but twelve of the applicants were either born with their 
vision impairments or have had them since childhood. The twelve 
individuals who sustained their vision conditions as adults have had 
them for periods ranging from 4 to 28 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. 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 skills 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 47 drivers have been 
authorized to drive a CMV in intrastate commerce, even though their 
vision disqualified them from driving in interstate commerce. They have 
driven CMVs with their limited vision for careers ranging from 3 to 45 
years. In the past 3 years, five of the drivers have had convictions 
for traffic violations and none of them were involved in crashes.
    The qualifications, experience, and medical condition of each 
applicant were stated and discussed in detail in the June 2, 2006 
Notice (71 FR 32183).

Basis for Exemption Determination

    Under 49 U.S.C. 31136(e) and 31315, 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, 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, FMCSA 
requires a person to present verifiable evidence that he/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 may be found at docket number FMCSA-98-3637.
    We believe we can properly apply the principle to monocular 
drivers, because data from the Federal Highway Administration's (FHWA) 
former waiver study 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,

[[Page 41312]]

March 26, 1996). The fact that experienced monocular drivers 
demonstrated safe driving records in the waiver program 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 47 applicants, one applicant had a traffic violation for speeding, 
two applicants failed to obey a traffic sign, one applicant failed to 
drive within the proper lane, one applicant violated his license 
restriction, and no applicants were involved in crashes. 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, 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 between them 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/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 is 
granting the exemptions for the 2-year period allowed by 49 U.S.C. 
31136(e) and 31315 to the 47 applicants listed in the Notice of June 2, 
2006 (71 FR 32183).
    We recognize that the vision of an applicant may change and affect 
his/her ability to operate a CMV as safely as in the past. As a 
condition of the exemption, therefore, FMCSA will impose requirements 
on the 47 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

    Advocates for Highway and Auto Safety (Advocates) expressed 
opposition to FMCSA's policy to grant exemptions from the FMCSR, 
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. 31136(e) and 31315); 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.
    Two letters of recommendation were received in favor of granting 
the Federal vision exemption to two of the applicants. The first was 
concerning Harvis Cosby and it was written by Andrew Johnson, who is a 
transportation supervisor at Toys R Us where Mr. Cosby is currently 
employed. The second letter was regarding Duane L. Tysseling and it was 
written by the Iowa Department of Transportation. Both letters suggest 
that these applicants be granted Federal vision exemption due to their 
high level of professionalism and safety while driving.

Conclusion

    Based upon its evaluation of the 47 exemption applications, FMCSA 
exempts Jawad K. Al-Shaibani, Kenneth J. Bernard, Allen G. Bors, 
Douglas, L. Brazil, John E. Breslin, Marcus S. Burkholder, Raymond L. 
Brush, Scott F. Chalfant, Leroy A. Chambers, Harvis P. Cosby, Joseph H. 
Fowler, Francisco Espinal, Brian G. Hagen, Edward J. Hess, Jr., Ralph 
E. Holmes, Timothy B. Hummel, Larry L. Jarvis, Charles E. Johnston, 
Volga Kirkwood, Richard M. Kriege, David C. Leoffler, John C. Lewis, 
Patrick E. Martin, Leland K. McAlhaney, Willam C. Mohr, Roger Moody, 
Larry A. Nienhuis, Corey L. Paraf, John J. Pribanic, Ronald M. Price, 
John P. Raftis, Matthew B. Richardson, Bruce G. Robinson, Alton M. 
Rutherford, Wayne N. Savoy, Richard A. Schneider, Joseph B. Shaw, Jr., 
David W. Skillman, Thomas G. Smith, Sandra J. Sperling,

[[Page 41313]]

Kenneth C. Steele, Ryan K. Steelman, Paul D. Totty, Charles V. Tracey, 
Duane L. Tysseling, Richard A. Westfall, and Leonard R. Wilson from the 
vision requirement in 49 CFR 391.41(b)(10), subject to the requirements 
cited above (49 CFR 391.64(b)).
    In accordance with 49 U.S.C. 31136(e) and 31315, 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. 31136 and 31315.
    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: July 13, 2006.
Rose A. McMurray,
Associate Administrator, Policy and Program Development.
[FR Doc. E6-11556 Filed 7-19-06; 8:45 am]
BILLING CODE 4910-EX-P