

[Federal Register: September 27, 2007 (Volume 72, Number 187)]
[Notices]
[Page 54972-54974]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27se07-119]

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

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2007-28695]


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 19 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 September 27, 2007. The exemptions
expire on September 28, 2009.

FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Chief, Physical
Qualifications Division, (202)-366-4001, fmcsamedical@dot.gov, 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 Document Management
System (DMS) at http://dmses.dot.gov.

    Docket: For access to the docket to read background documents or
comments, go to http://dms.dot.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.
    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 August 17, 2007, FMCSA published a notice of receipt of
exemption applications from certain individuals, and requested comments
from the public (72 FR 46261). That notice listed 19 applicants' case
histories. The 19 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 19 applications on their merits
and made a determination to grant exemptions to all of them. The
comment period closed on September 17, 2007.

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

[[Page 54973]]

accommodate their vision limitation and demonstrated their ability to
drive safely. The 19 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, macular scar, corneal scar,
optic nerve injury, Stickler's syndrome, strabismus, parasitic disease
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 4 to 48 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 19 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 4 to 48
years. In the past 3 years, one of the drivers had a conviction for a
traffic violation and one of them was involved in two crashes.
    The qualifications, experience, and medical condition of each
applicant were stated and discussed in detail in the August 17, 2007
notice (72 FR 46261).

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 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
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 19 applicants, one of the applicants had a traffic violation for
speeding, and one applicant was involved in two 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 19 of the applicants listed in the notice of
August 17, 2007 (72 FR 46261).
    We recognize that the vision of an applicant may change and affect
his/her

[[Page 54974]]

ability to operate a CMV as safely as in the past. As a condition of
the exemption, therefore, FMCSA will impose requirements on the 19
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 no comments in this proceeding.

Conclusion

    Based upon its evaluation of the 19 exemption applications, FMCSA
exempts Dean N. Brown, James F. Cain, Sr., David N. Cleveland, Matthew
R. Floyd, Nicholas A. Gotelaere, Christian L. Gremillion, Valerie L.
Kaune, Frank D. Konwinski, Jr., James E. Mallette, Richard K. Mell,
Christian E. Merseth, Luis J. Najera, Kenneth D. Perkins, Terry W.
Pope, Daniel T. Rhodes, Stephen E. Shields, Ricky J. Siebels, Don S.
Williams, and Robert L. Williams, Jr. 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: September 21, 2007.
Larry W. Minor,
Associate Administrator for Policy and Program Development.
 [FR Doc. E7-19112 Filed 9-26-07; 8:45 am]

BILLING CODE 4910-EX-P
