[Federal Register: September 13, 2007 (Volume 72, Number 177)]
[Notices]
[Page 52419-52421]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13se07-95]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2007-27897]
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 63 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 13, 2007. The exemptions
expire on September 14, 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. The DMS 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 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 July 20, 2007, FMCSA published a notice of receipt of exemption
applications from certain individuals, and requested comments from the
public (72 FR 39879). That notice listed 64 applicants' case histories.
The 64 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 64 applications on their merits
and made a determination to grant exemptions to 63 of them. The comment
period closed on August 20, 2007.
The Agency received a public comment challenging the validity of
Mr. Raymond Ochse's reported CMV driving experience and other
information submitted in his application. Therefore, FMCSA is unable to
render a final decision related to granting him an exemption until our
investigation is concluded.
The Agency would like to publish a correction to Mr. Moreland's
case history published in the July 20, 2007 notice (72 FR 39883). Mr.
Moreland was published with a first name of Arnold when his first name
is Arthur.
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 63 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 hole, retinal detachment, corneal/retinal scarring,
optic nerve injury, macular degeneration, histoplasmosis, choroidal
neovascularization, phthisis bulbi, retinal vein occlusion, cataract,
exotropia, papillitis, and acute multifocal plaquoid pigment
epitheliopathy. In most cases, their eye conditions were not recently
developed. All but twenty of the applicants were either born with their
vision impairments or have had them since childhood. The twenty
individuals who sustained their vision conditions as adults have had
them for periods ranging from 4 to 34 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 63 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 34
years. In the past 3 years, eleven of the drivers have had convictions
for traffic violations and five of them were involved in crashes.
The qualifications, experience, and medical condition of each
applicant were stated and discussed in detail in the July 20, 2007
notice (72 FR 39879).
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
[[Page 52420]]
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 63 applicants, eight of the applicants had traffic violations for
speeding, two applicants failed to obey a traffic sign, and one
applicant followed too closely. 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 63 of the 64 applicants listed in the notice of
July 20, 2007 (72 FR 39879).
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 63 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.
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
[[Page 52421]]
here, but refer interested parties to those earlier discussions.
T. Reyes challenged the validity of Raymond K. Ochse's reported CMV
driving experience. He alleged that Mr. Ochse gave false information
concerning his recent employment history and the amount of miles he has
driven a commercial vehicle.
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.
The Right Way Inc. recommended that Terry W. Moore receive the
exemption due to his safe operation of vehicles with his visual
deficiency.
Conclusion
Based upon its evaluation of the 64 exemption applications, FMCSA
exempts John W. Black, Ronald D. Boeve, Paul T. Breitigan, John A.
Bridges, Edward G. Brown, Edwin L. Bupp, Charles E. Castle, Joel C.
Conrad, Duane C. Conway, David L. Cummings, Brian W. Curtis, Roger D.
Davidson, Sr., Richard A. Davis, Sr., Thomas E. Dixon, Robin C.
Duckett, Steven C. Durst, Marco A. Esquivel, Charles D. Grady, Paul L.
Graunstadt, Danny R. Gray, Louis E. Henry, Jr., Raymond L. Herman,
Jesse R. Hillhouse, Jr., Billy R. Holdman, Marshall L. Jackson, Ray C.
Johnson, Terry R. Jones, Randall H. Keil, Gregory K. Lilly, Paul G.
Mathes, John T. McWilliams, Robert A. Miller, Rodney R. Miller, Stuart
T. Miller, James J. Mitchell, Terry W. Moore, Arthur R. Moreland,
Andrew M. Nurnberg, Charles D. Oestreich, Robert G. Owens, Kenneth R.
Pedersen, Joshua R. Perkins, Donald F. Plouf, Willie L. Ponders, Eligio
M. Ramirez, Victor C. Richert, Elvis E. Rogers, Jr., Garry L. Rogers,
Craig R. Saari, Jerry L. Schroder, Gerald J. Shamla, Willie C. Smith,
Lanny R. Spears, Lawrence E. Stabeno, Larry D. Steiner, Robert S.
Swaen, Robert L. Thies, David R. Thomas, Anthony T. Truiolo, Gregory A.
VanLue, Karl A. Weinert, Ricky L. Wiginton, and Kevin W. Wunderlin 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 7, 2007.
Larry W. Minor,
Associate Administrator for Policy and Program Development.
[FR Doc. E7-18079 Filed 9-12-07; 8:45 am]
BILLING CODE 4910-EX-P