[Federal Register Volume 76, Number 233 (Monday, December 5, 2011)]
[Notices]
[Pages 75943-75945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31164]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2011-0190]


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 14 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 requirement. 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 December 5, 2011. The exemptions 
expire on December 5, 2013.

FOR FURTHER INFORMATION CONTACT: Elaine M. Papp, Chief, Medical 
Programs Division, (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

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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 DOT's Privacy Act Statement for the FDMS 
published in the Federal Register on January 17, 2008 (73 FR 3316), or 
you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

Background

    On October 17, 2011, FMCSA published a notice of receipt of 
exemption applications from certain individuals, and requested comments 
from the public (76 FR 64169). That notice listed 14 applicants' case 
histories. The 14 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 14 applications on their merits 
and made a determination to grant exemptions to each of them.

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 requirement 
red, green, and amber (49 CFR 391.41(b)(10)).
    FMCSA recognizes that some drivers do not meet the vision 
requirement, but have adapted their driving to accommodate their vision 
limitation and demonstrated their ability to drive safely. The 14 
exemption applicants listed in this notice are in this category. They 
are unable to meet the vision requirement in one eye for various 
reasons, including retinal detachment, amblyopia, complete loss of 
vision, prosthesis, central retinal vein occlusion, postenor ureal 
malignant melanoma, cataract, and retinal scarring. In most cases, 
their eye conditions were not recently developed. Nine of the 
applicants were either born with their vision impairments or have had 
them since childhood. The 5 individuals who sustained their vision 
conditions as adults have had them for periods ranging from 5 to 35 
years.
    Although each applicant has one eye which does not meet the vision 
requirement 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 of these applicants satisfied the testing requirements 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 14 drivers have been 
authorized to drive a CMV in intrastate commerce, even though their 
vision disqualified them from driving in interstate commerce. With 
their limited vision, they have driven CMVs for careers ranging from 3 
to 33 years. In the past 3 years, none of the drivers was involved in 
crashes and one was convicted of two moving violations in a CMV.
    The qualifications, experience, and medical condition of each 
applicant were stated and discussed in detail in the October 17, 2011, 
notice (76 FR 64169).

Basis for Exemption Determination

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption 
from the vision requirement 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 the medical reports about the applicants' vision, as well as 
their driving records and experience with the vision deficiency.
    To qualify for an exemption from the vision requirement, 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-1998-3637.
    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

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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 14 applicants, none of the applicants was involved in crashes and 
one applicant was convicted of two moving violations in a CMV for 
speeding. All the applicants achieved a 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 that 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 requirement 
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 14 applicants listed in the notice of October 
17, 2011 (76 FR 64169).
    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 14 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 requirement 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 discussed below.
    Laura J. Krol of the Pennsylvania Department of Transportation is 
in favor of granting David A. Rice an exemption.

Conclusion

    Based upon its evaluation of the 14 exemption applications, FMCSA 
exempts, Kevin G. Clem (SD), Richard A. Hackney (MS), Rocky J. Lachney 
(LA), Herman Martinez (NM), Charles L. McClendon (FL), Gerald L. Pagan 
(NC), Danny C Pope (IL), David A. Rice (PA), Levi A. Shelter (OH), Rick 
E. Smith (IL), Juan E. Sotero (FL), Randell K. Tyler (AL), Steven R. 
Wetlesen (AL) and Jeffrey K. Yockey (OH) 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: November 28, 2011.
Larry W. Minor,
 Associate Administrator for Policy.
[FR Doc. 2011-31164 Filed 12-2-11; 8:45 am]
BILLING CODE 4910-EX-P