[Federal Register Volume 63, Number 6 (Friday, January 9, 1998)]
[Notices]
[Pages 1524-1527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-568]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration
[FHWA Docket No. FHWA-97-2625]


Qualification of Drivers; Waiver Application; Vision

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of final disposition.

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SUMMARY: The FHWA announces its decision to grant the petition of David 
R. Rauenhorst for a waiver of the vision requirement contained in 49 
CFR 391.41(b)(10).

EFFECTIVE DATE: This decision is effective on Jnauary 9, 1998.

FOR FURTHER INFORMATION CONTACT: Ms. Sandra Zywokarte, Office of Motor 
Carrier Research and Standards, (202) 366-1790, or Ms. Judy Rutledge, 
Office of Chief Counsel, (202) 366-0834, Federal Highway 
Administration, Department of Transportation, 400 Seventh Street, SW., 
Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., 
e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: David R. Rauenhorst petitioned the FHWA for 
a waiver of the vision requirement in 49 CFR 391.41(b)(10), which 
applies to drivers of commercial motor vehicles in interstate commerce. 
The FHWA evaluated Mr. Rauenhorst's application on its merits, as 
required by the decision in Rauenhorst v. United States Department of 
Transportation, Federal Highway Administration, 95 F.3d 715 (8th Cir. 
1996), and made a preliminary determination that the waiver should be 
granted. On July 2, 1997, the agency published notice of its 
preliminary determination and requested comments from the public. (62 
FR 35881). The

[[Page 1525]]

comment period closed on August 1, 1997. Four comments were received, 
and their contents were carefully considered by the FHWA in reaching 
its final decision to grant Mr. Rauenhorst's petition for a waiver of 
the vision requirement in 49 CFR 391.41(b)(10).

Mr. Rauenhorst's Vision and Driving Experience

    The vision requirement in 49 CFR 391.41(b)(10) 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 at 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.

    Mr. Rauenhorst is unable to meet the vision standard because a non-
driving accident in 1976 caused him to sustain a retinal detachment in 
his right eye. As a result, vision in his right eye is limited to 
finger counting, and the capability of seeing movement, colors, and 
gross objects. Medical reports for 1995, 1996, and 1997 indicate that 
Mr. Rauenhorst's eye condition is non-degenerative and that the vision 
in the right eye is stable. Moreover, Mr. Rauenhorst has had 20/20 
corrected vision in his left eye for the last three years, and, in his 
doctor's opinion, can safely operate any motor vehicle.
    Whether Mr. Rauenhorst can safely operate a commercial motor 
vehicle is the critical question in this proceeding. Under 49 U.S.C. 
31136(e), the FHWA may waive application of the vision standard to Mr. 
Rauenhorst only if the agency determines that the waiver is consistent 
with the public interest and the safe operation of commercial motor 
vehicles. In making that determination, the FHWA has considered not 
only the medical evaluation of Mr. Rauenhorst's vision but also his 
driving record and experience. Mr. Rauenhorst has been self-employed as 
a commercial truck driver since 1974. During this time, he has driven 
tractor-trailer combinations more than 2 million miles to transport 
sugar beets and bulk commodities for seed companies. In the last ten 
years, with his limited vision, he has driven 1 million miles without 
an accident. Most significantly, his driving record for the past 3 
years reflects no traffic violations as well as no accidents. This 
driving history demonstrates that Mr. Rauenhorst's vision deficiency 
has not compromised his ability to safely operate a commercial vehicle 
and that he has adapted his driving techniques to accommodate the 
limited vision in his right eye.
    Mr. Rauenhorst's ability to operate a commercial vehicle is also 
evidenced by his possession of a valid commercial driver's license 
(CDL). Before issuing a CDL, States subject the driver to knowledge and 
performance tests designed to evaluate the driver's qualifications to 
drive the vehicle to be operated. Mr. Rauenhorst satisfied the testing 
standards for the State of Minnesota and holds a current CDL that was 
issued on April 10, 1995 and is valid until February 22, 1999. The 
current license was preceded by another Minnesota CDL which was 
effective from January 31, 1991, until February 22, 1995. By meeting 
his State's licensing requirements, Mr. Rauenhorst demonstrated his 
ability to operate a commercial vehicle with his limited vision to the 
satisfaction of the State.

Basis for Waiver Determination

    To waive application of 49 CFR 391.41(b)(10) to Mr. Rauenhorst, the 
FHWA must find the waiver to be consistent with the public interest and 
the safe operation of commercial motor vehicles. (49 U.S.C. 31136(e)). 
We find that granting the waiver is consistent with the public 
interest. Mr. Rauenhorst has earned his living as a commercial truck 
driver since 1974, notwithstanding a vision deficiency which 
disqualifies him from operating a vehicle in interstate commerce. This 
waiver will allow him to broaden his employment opportunities by 
enabling him to operate commercial vehicles in interstate commerce. As 
a result, the economic viability of his business may be enhanced. In 
that regard, the waiver will allow the employment of a person with a 
disability, which is consistent with the public policies expressed in 
the Rehabilitation Act of 1973 and the Americans with Disabilities Act 
of 1992.
    The waiver is also consistent with the safe operation of commercial 
motor vehicles. In reaching this determination, the FHWA has relied 
upon research studies designed to correlate past and future driving 
performance. Copies of the several studies relied upon here have been 
added to the docket.
    The first major research in this area was done in England by 
Greenwood and Yule in 1920. Subsequent studies, building on that model, 
concluded that accident 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 accident 
proneness from accident 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 accidents. (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 accident 
predictor for both concurrent and nonconcurrent events is the number of 
single convictions. This California study used three consecutive years 
of data, comparing the experience of drivers in the first two years 
with the experience of those same drivers the final year.
    Results of these studies support the principle that the best 
predictor of future performance by a driver is his past record of 
accidents and traffic violations. Mr. Rauenhorst's driving record 
reflects that he has had no accidents or traffic violations in the past 
three years. He established this record while driving with the limited 
vision caused by the retinal detachment in 1976, a fact which 
demonstrates that he has adapted his driving skills to accommodate his 
eye condition. Because Mr. Rauenhorst's driving history is the best 
predictor of future performance, absent any information indicating any 
reduction in visual capacity or other factor essential to the driving 
task, the FHWA has determined that his ability to drive safely can be 
projected into the future and that waiving application of the vision 
standard is consistent with the safe operation of commercial motor 
vehicles.
    In granting this waiver, the FHWA is mindful that vision changes. A 
deterioration of Mr. Rauenhorst's vision in the future could affect his 
ability to operate a commercial vehicle as safely as he has in the 
past. For that reason, the FHWA will impose conditions on the waiver to 
ensure that Mr. Rauenhorst's vision is monitored annually. These 
conditions are consistent with the grandfathering provisions applied to 
drivers who participated in the vision waiver study program. They are 
found at 49 CFR 391.64(b) and include the following: (1) That Mr. 
Rauenhorst be physically examined every year (a) by an ophthalmologist 
or optometrist who attests to the fact that his vision continues to 
measure at least 20/40

[[Page 1526]]

(Snellen) in the better eye; and (b) by a medical examiner who attests 
to the fact that he is otherwise physically qualified under 49 CFR 
391.41; (2) that he provide a copy of the ophthalmologist or 
optometrist report to the medical examiner at the time of the annual 
medical examination; and (3) that he keep a copy of the annual medical 
certification in his driver qualification file as long as he is self-
employed or provide a copy to his employer for retention in the 
driver's qualification file, and retain a copy of the certification on 
his person while driving for presentation to a duly authorized Federal, 
State, or local enforcement official.

Discussion of Comments

    The FHWA received four (4) comments to the docket in response to 
its July 2, 1997, notice of intent to grant Mr. Rauenhorst's 
application for a waiver. Each comment has been considered by the FHWA 
in reaching its final determination and is discussed below.
    The International Brotherhood of Teamsters (IBT) supported the 
FHWA's determination to grant the waiver. Although favoring a 
conservative approach to waiving safety standards, the IBT agreed that 
Mr. Rauenhorst's stable medical condition, driving history, and 
agreement to periodic monitoring support a finding that the waiver is 
consistent with the public interest and the safe operation of 
commercial motor vehicles.
    The comment filed by the Insurance Institute for Highway Safety 
(IIHS) did not address Mr. Rauenhorst's waiver but instead urged the 
FHWA, in this proceeding and two others in which its comment was filed, 
to thoroughly verify all reports of crash rates made by drivers or 
motor carriers. Noting that self-reporting has, in the past, resulted 
in under reporting, the IIHS observed that drivers seeking waivers from 
medical qualifications have an economic incentive to understate their 
crashes and overstate their annual mileage. Those concerns are not a 
factor in this proceeding, however, because the FHWA did not rely on 
Mr. Rauenhorst's report of his accidents and traffic violations. 
Instead the agency required, and relied on, a certified copy of Mr. 
Rauenhorst's driving record from the State of Minnesota to prove that 
he has had no accidents or traffic violations in the past three years.
    The American Trucking Associations (ATA) opposes granting waivers 
to drivers who cannot meet the existing medical standards. It believes 
that the current standards ensure that drivers are in sufficiently good 
health to drive safely and that the vision standard is particularly 
important because driving responses are based primarily on what is 
seen. If the waiver is granted, however, the ATA agrees that Mr. 
Rauenhorst should be subject to the same annual examination 
requirements that were imposed on the ``grandfathered'' drivers in FHWA 
Docket MC-96-2. Additionally, it believes that Mr. Rauenhorst should be 
required to report his involvement in any DOT-recordable accident 
directly to the FHWA and be prohibited from driving until he has 
undergone a medical and vision examination following the accident.
    Except for his vision, Mr. Rauenhorst's health is not at issue 
because he meets all other medical qualification standards in 49 CFR 
391.31(b). Moreover, the clean driving record he has established over 
the last three years with his limited vision reflects Mr. Rauenhorst's 
ability to make safe and appropriate driving responses to visual 
stimuli. Therefore, applying the Court's decision in Rauenhorst v. 
United States Department of Transportation, Federal Highway 
Administration, the FHWA is satisfied that Mr. Rauenhorst qualifies 
under 49 U.S.C. 31136 for a waiver of the vision requirements, subject 
to the conditions enumerated in this decision. One of those conditions 
requires him to undergo annual vision examinations which will disclose 
any deterioration in his visual capacity and will affect his 
qualifications for the waiver. In view of his driving record and stable 
vision over the last three years, there is no reason to believe that 
his vision will play any greater role in a potential accident than the 
vision of a driver who meets the vision standard. For that reason, the 
FHWA does not agree that special conditions regarding accident 
reporting and driving suspension are warranted.
    In the fourth comment to the Docket, the Advocates for Highway and 
Auto Safety (AHAS) questions whether the administrative record in this 
case adequately addresses issues that are relevant to the merits of Mr. 
Rauenhorst's waiver application. Four particular issues are raised in 
its comment.
    First, the AHAS does not think the record adequately reflects the 
magnitude of the retinal detachment, describes the extent to which the 
detachment has adversely affected Mr. Rauenhorst's vision, or provides 
any analysis of other aspects of his vision such as depth perception, 
peripheral vision, and visual acuity in the injured eye. But Mr. 
Rauenhorst's medical reports for 1995, 1996, and 1997 are part of the 
record in this case and indicate that he can count fingers, and see 
movement, colors, and gross objects with his right eye. They also 
reflect his doctor's opinion that the eye condition is stable, an 
opinion which necessarily considers the severity of the retinal 
detachment. Furthermore, the reports confirm that Mr. Rauenhorst has 
20/20 corrected vision in his left eye and, therefore, provide an 
overview of his vision which the FHWA believes adequate to support its 
action in this case.
    AHAS next points out that the record contains nothing to support 
the agency's statement that Mr. Rauenhorst has adapted his driving 
skills to accommodate his limited vision. We think the statement is 
supported by Mr. Rauenhorst's driving record. That he has driven the 
last three years without having an accident or being convicted of a 
traffic violation demonstrates that he has developed driving techniques 
to compensate for his vision impairment.
    As its third issue, the AHAS objects that the record does not 
explain how Mr. Rauenhorst obtained a CDL in view of his legally 
disqualifying vision deficiency. Moreover, it wonders why the waiver is 
necessary if he holds a valid CDL. In raising this issue, the AHAS has 
misconstrued the relationship between a CDL and the driver 
qualification standards in 49 CFR 391.41. To operate a commercial motor 
vehicle in interstate commerce, a driver must have both a CDL and a 
medical card. The medical card is issued by a medical examiner who 
certifies that the driver meets the physical qualification standards in 
49 CFR 391.41(b). Mr. Rauenhorst cannot meet those physical standards 
due to his vision, and, therefore, does not possess the medical card 
required to operate in interstate commerce. On the other hand, the CDL 
is issued by the driver's State and authorizes a person to drive a 
particular kind of commercial vehicle. Although States have physical 
qualification requirements compatible with those in 49 CFR 391.41(b), a 
State may waive those requirements for intrastate operations under 
certain conditions. Thus, it is possible for a driver to obtain a CDL 
but not be physically qualified to drive in interstate commerce. Mr. 
Rauenhorst falls into this category, and consequently his driving has 
been limited to intrastate commerce even though he holds a valid CDL. 
With a waiver of the vision requirement in 49 CFR 391.41(b)(10), he 
will be able to obtain a medical card and operate in interstate 
commerce.

[[Page 1527]]

    Finally, the AHAS notes that the record contains no assessment of 
the character of mileage driven by Mr. Rauenhorst. It asserts that 
intrastate operations involve different driving conditions than 
interstate operations so Mr. Rauenhorst's mileage must be categorized 
in order to properly evaluate his experience and driving record. Such 
an approach would create a Catch-22 for persons seeking a waiver. 
Drivers like Mr. Rauenhorst do not physically qualify to drive in 
interstate commerce. If interstate driving experience is required 
before obtaining a waiver, a physically challenged driver would never 
qualify for a waiver, or, alternatively, would be compelled to drive 
illegally in interstate commerce to acquire the experience necessary to 
be evaluated for a waiver. The FHWA cannot sanction a standard that 
yields such a result. Moreover, intrastate driving amply tests the 
skills and capability of a driver.
    Intrastate driving could very well expose the driver to more 
congested urban areas, narrower rural roads, a greater variety of 
vehicles, more pedestrians, and more vehicle traffic than exists on 
interstate highways. Intrastate driving also involves substantial 
driving on highways on the interstate system and on other roads built 
to interstate standards. These conditions tax visual capacity and 
driver response just as intensely as interstate driving conditions. For 
this reason, we believe Mr. Rauenhorst's intrastate driving experience 
provides an adequate basis for evaluating his ability to safely operate 
a CMV in interstate commerce.

Conclusion

    After considering the comments to the Docket and based upon its 
evaluation of Mr. Rauenhorst's waiver application in accordance with 
Rauenhorst v. United States Department of Transportation, Federal 
Highway Administration, the FHWA waives application of the vision 
requirement in 49 CFR 391.41(b)(10) as it applies to Mr. Rauenhorst 
subject to the following conditions: (1) That Mr. Rauenhorst be 
physically examined every year (a) by an ophthalmologist or optometrist 
who attests to the fact that his vision continues to measure at least 
20/40 (Snellen) in the better eye; and (b) by a medical examiner who 
attests to the fact that he is otherwise physically qualified under 49 
CFR 391.41; (2) that he provide a copy of the ophthalmologist or 
optometrist report to the medical examiner at the time of the annual 
medical examination; and (3) that he keep a copy of the annual medical 
certification in his driver qualification file as long as he is self-
employed or provide a copy to his employer for retention in the 
driver's qualification file, and retain a copy of the certification on 
his person while driving for presentation to a duly authorized Federal, 
State, or local enforcement official.

    Authority: 49 U.S.C. 31136; 23 U.S.C. 315; 49 CFR 1.48.

    Issued on: December 31, 1997.
Kenneth R. Wykle,
Federal Highway Administrator.
[FR Doc. 98-568 Filed 1-8-98; 8:45 am]
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