Federal Register / Vol. 73, No. 160 / Monday, August 18, 2008 / Notices 48273 

Until the Agency issues a Final Rule, 

however, drivers with monocular vision 

must continue to apply for exemptions 

from FMCSA, and request renewals of 

such exemptions. FMCSA will grant 

exemptions only to those applicants 

who meet the specific conditions and 

comply with all the requirements of the 

exemption. 

Conclusion 

Based upon its evaluation of the 19 

exemption applications, FMCSA 

exempts, Gary R. Andersen, Mitchell L. 

Carman, Ivory Davis, William S. 

Edginton, Lucious J. Erwin, James M. 

Fairman, Kelly L. Foster, Donald G. 

Fuechslin, Donald W. Garner, Gary J. 

Hambrick, Franklin D. Jones, Raymond 

J. Lee, James T. Leek, Richard A. 

Peterson, Philip NMI. Polcastro, Chad 

M. Quarles, Daniel S. Rebstad, Charles 

R. Sylvester, and James L. Williams 

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. E8–19081 Filed 8–15–08; 8:45 am] 

BILLING CODE 4910–EX–P 

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. 

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, 

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 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 selfaddressed, 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° 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 


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48274 Federal Register / Vol. 73, No. 160 / Monday, August 18, 2008 / Notices 

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 nonCDL, 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 


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Federal Register / Vol. 73, No. 160 / Monday, August 18, 2008 / Notices 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 selfemployed. 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 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

[Docket No. FMCSA–99–6156, FMCSA–99–

6480, FMCSA–00–7006, FMCSA–01–10578, 

FMCSA–02–11714, FMCSA–02–13411, 

FMCSA–03–16241, FMCSA–03–16564, 

FMCSA–04–17195, FMCSA–05–21711, 

FMCSA–05–22194, FMCSA–05–23099, 

FMCSA–05–23238, FMCSA–06–23773, 

FMCSA–06–24015, FMCSA–06–24783] 

Qualification of Drivers; Exemption 

Renewals; Vision 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of final disposition. 

SUMMARY: FMCSA previously 

announced its decision to renew the 

exemptions from the vision requirement 

in the Federal Motor Carrier Safety 

Regulations for 58 individuals. FMCSA 

has statutory authority to exempt 

individuals from the vision requirement 

if the exemptions granted will not 

compromise safety. The Agency has 

reviewed the comments submitted in 

response to the previous announcement 

and concluded that granting these 

exemptions will provide a level of safety 

that will be equivalent to, or greater 

than, the level of safety maintained 

without the exemptions for these 

commercial motor vehicle (CMV) 

drivers. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Mary D. Gunnels, Director, Medical 

Programs, (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 Federal Document 

Management System (FDMS) at http:// 

www.regulations.gov. 

Background 

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 


sroberts on PROD1PC70 with NOTICES