[Federal Register Volume 73, Number 205 (Wednesday, October 22, 2008)]
[Notices]
[Pages 63047-63049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25176]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2008-0266]


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 26 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 October 22, 2008. The exemptions 
expire on October 22, 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 on-line.
    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 September 4, 2008, FMCSA published a notice of receipt of 
exemption applications from certain individuals, and requested comments 
from the public (73 FR 51689). That notice listed 25 applicants' case 
histories. The 25 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 25 applications on their merits 
and made a determination to grant exemptions to all of them. The 
comment period closed on October 6, 2008.
    In a previous notice (73 FR 48273), the Agency noted that a public 
comment was received challenging the validity of some information that 
Mr. James W. Lappan submitted in his application. At this time, FMCSA 
has concluded investigations regarding Mr. James W. Lappan and has 
determined that he

[[Page 63048]]

meets FMCSA's criteria for a Federal vision exemption.

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 26 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, optic nerve defect, 
glaucoma, exotropia, and loss of vision due to trauma. In most cases, 
their eye conditions were not recently developed. All but five of the 
applicants were either born with their vision impairments or have had 
them since childhood. The five individuals who sustained their vision 
conditions as adults have had them for periods ranging from 3 to 27 
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 26 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 35 
years. In the past 3 years, two of the drivers had convictions for 
traffic violations and three of them were involved in crashes.
    The qualifications, experience, and medical condition of each 
applicant were stated and discussed in detail in the September 4, 2008 
notice (73 FR 51689).

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 26 applicants, two of the applicants had a traffic violation for 
speeding, and three 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

[[Page 63049]]

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 25 applicants listed in 
the notice of September 4, 2008 (73 FR 51689).
    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 26 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 three comments in this proceeding. The comments were 
considered and discussed below.
    One of the comments was a recommendation in favor of granting the 
Federal vision exemption to Kevin Quastad, the second was a 
recommendation in favor of granting the Federal vision exemption to all 
applicants.
    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.

Conclusion

    Based upon its evaluation of the 26 exemption applications, FMCSA 
exempts, Larry W. Barnes, Rick A. Benevides, Jack E. Benjamin, Allen S. 
Bush, Todd A. Chapman, Delone W. Dudley, Irvin L. Eaddy, Herman Hicks, 
James W. Lappan, Ralph Landers, Jeromy W. Leatherman, Ernest B. Martin, 
Mark L. McWhorter, Charles D. Messier, Raymond C. Miller, Dennis E. 
Palmer, Jr., Gary W. Phelps, Kevin L. Quastad, John E. Rains, James D. 
St. Peter, Michael Sutton, Sylvester Silver, Sylvester Silver, William 
R. Thomas, Terrence L. Trautman, and David Vallier, 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: October 14, 2008.
Larry W. Minor,
Associate Administrator for Policy and Program Development.
[FR Doc. E8-25176 Filed 10-21-08; 8:45 am]
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