[Federal Register Volume 73, Number 160 (Monday, August 18, 2008)]
[Notices]
[Pages 48273-48275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19083]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2008-0106]


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 67 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 August 18, 2008. The exemptions 
expire on August 18, 2010.

FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Director, Medical 
Programs, (202) 366-4001, [email protected], FMCSA, Department of 
Transportation, 1200 New Jersey Avenue, SE., Room W64-224, Washington, 
DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m. Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    You may see all the comments online through the Federal Document 
Management System (FDMS) at http://www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments, go to http://www.regulations.gov at any time or Room W12-140 
on the ground level of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays. The FDMS is available 24 hours each day, 365 
days each year. If you want acknowledgment that we received your 
comments, please include a self-addressed, stamped envelope or postcard 
or print the acknowledgement page that appears after submitting 
comments online.
    Privacy Act: Anyone may search the electronic form of all comments 
received into any of our 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, etc.). 
You may review the DOT's complete Privacy Act Statement in the Federal 
Register published on April 11, 2000 (65 FR 19476). This information is 
also available at http://Docketsinfo.dot.gov.

Background

    On June 20, 2008, FMCSA published a notice of receipt of exemption 
applications from certain individuals, and requested comments from the 
public (73 FR 35194). That notice listed 68 applicants' case histories. 
The 68 individuals applied for exemptions from the vision requirement 
in 49 CFR 391.41(b)(10), for drivers who operate CMVs in interstate 
commerce.
    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 68 applications on their merits 
and made a determination to grant exemptions to 67 of them. The comment 
period closed on July 21, 2008.
    The Agency received a public comment challenging the validity of 
Mr. James W. Lappan's and Mr. Charles S. Huffman's reported CMV driving 
experience and other information submitted in their application. At 
this time, FMCSA has concluded investigations regarding Mr. Charles S. 
Huffman and has determined that he meets FMCSA's criteria for a Federal 
vision exemption. However, FMCSA is unable to render a final decision 
related to granting Mr. James W. Lappan an exemption until our 
investigation is concluded.

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[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)).
    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 68 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, prosthesis, posterior staphyloma, 
lateral nystagmus, optic nerve atrophy, leukoma, macular scar, 
extropia, macular hole, central serous retinopathy, corneal scarring, 
retinal damage, and loss of vision due to trauma. In most cases, their 
eye

[[Page 48274]]

conditions were not recently developed. All but fifteen of the 
applicants were either born with their vision impairments or have had 
them since childhood. The fifteen individuals who sustained their 
vision conditions as adults have had them for periods ranging from 5 to 
58 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 68 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 48 
years. In the past 3 years, eleven of the drivers had convictions for 
traffic violations and nine of them were involved in crashes.
    The qualifications, experience, and medical condition of each 
applicant were stated and discussed in detail in the June 20, 2008 
notice (73 FR 15567).

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 the past 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, 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 68 applicants, eight of the applicants had a traffic violation for 
speeding, one of the applicants had a traffic violation for failure to 
obey a traffic device, one of the applicants had a traffic violation 
for following another vehicle too closely, another applicant had had a 
traffic violation for impeding traffic, and nine of the 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 67 of the 68 applicants listed in the notice of 
June 20, 2008 (73 FR 35194).
    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 67 individuals consistent with the

[[Page 48275]]

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 four comments in this proceeding. The comments were 
considered and discussed below. Two of the comments were 
recommendations in favor of granting the Federal vision exemption to 
Gerald Culverwell, John Brumberg, Armando D'Angeli, Scott Hillman, John 
Stone, and Robert Szeman.
    Advocates for Highway and Auto Safety (Advocates) expressed 
opposition to FMCSA's policy to grant exemptions from the FMCSRs, 
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.
    The Kansas division of transportation challenged the validity of 
James W. Lappan's reported CMV driving experience. The Agency is 
currently investigating the commenter's claims and will wait to render 
a final decision in this case until the investigation is complete.

Conclusion

    Based upon its evaluation of the 68 exemption applications, FMCSA 
exempts, Ronald G. Adams, Catarino Aispuro, Edwin A. Betz, James F. 
Brumberg, Donald L. Carman, John W. Carter, Jr., Christopher R. Cone, 
Walter O. Connelly, Stephen B. Copeland, Gerald L. Culverwell, Armando 
P. D'Angeli, Stephen R. Daugherty, Donald R. Davis, Louis A. Dipasqua, 
Jr., Henry L. Donivan, Randy J. Doran, Robert E. Dukes, Roger D. 
Elders, Robert E. Engel, James F. Epperson, James H. Facemyre, Gregory 
L. Farrar, Richie Ford, Kevin K. Friedel, Eric M. Giddens, Sr., Paul W. 
Goebel, Jr., Edward J. Grant, Jeffery M. Hall, Ronnie L. Hanback, 
Steven G. Harter, Michael C. Hensley, George G. Hernandez, Jr., Scott 
A. Hillman, Charles S. Huffman, Lance G. James, Jesse P. Jamison, James 
A. Jones, Ronnie M. Jones, Andrew C. Kelly, Jason W. King, Leslie A. 
Landschoot, Billy J. Lewis, Larry McCoy, Tommy L. McKnight, Robert W. 
McMillian, Danny W. Nuckles, David G. Olsen, Robert L. Person, Carroll 
G. Quisenberry, Ryan J. Reimann, Ronny L. Rogers, Paul L. Savage, 
Manuel G. Savin, Brandon J. See, Douglas A. Sharp, LeTroy D. Sims, 
Robert M. Stewart, John L. Stone, Robert J. Szeman, Donald J. Thompson, 
Nils S. Thornberg, Daniel W. Toppings, Kenneth E. Valentine, Lewis H. 
West, Jr., Christopher R. Whitson, Leon S. Willis, and George L. Young 
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: August 12, 2008.
Larry W. Minor,
Associate Administrator for Policy and Program Development.
[FR Doc. E8-19083 Filed 8-15-08; 8:45 am]
BILLING CODE 4910-EX-P