[Federal Register Volume 64, Number 95 (Tuesday, May 18, 1999)]
[Notices]
[Pages 27025-27027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12464]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration
[FHWA DOCKET NO. FHWA-99-5473]


Qualification of Drivers; Exemption Application; Vision

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of petition and intent to grant application for 
exemption; request for comments.

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SUMMARY: This notice announces the FHWA's preliminary determination to 
grant the application of James F. Durham for an exemption from the 
vision requirements in the Federal Motor Carrier Safety Regulations 
(FMCSR). Granting the exemption will enable Mr. Durham to qualify as a 
driver of commercial motor vehicles (CMVs) in interstate commerce 
without meeting the vision standard prescribed in 49 CFR 391.41(b)(10).

DATES: Comments must be received on or before June 17, 1999.

ADDRESSES: Your written, signed comments must refer to the docket 
number at the top of this document, and you must submit the comments to 
the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, 
SW., Washington, DC 20590-0001. All comments will be available for 
examination at the above address between 9 a.m. and 5 p.m., e.t., 
Monday through Friday, except Federal holidays. Those desiring 
notification of receipt of comments must include a self-addressed, 
stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: For information about the vision 
exemption in this notice, Ms. Sandra Zywokarte, Office of Motor Carrier 
Research and Standards, (202) 366-2987; for information about the legal 
issues related to this notice, Ms. Judith Rutledge, Office of the 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:

Electronic Access

    Internet users can access all comments received by the U.S. DOT 
Dockets, Room PL-401, by using the universal resource locator (URL):
http://dms.dot.gov. It is available 24 hours each day, 365 days each 
year. Please follow the instructions online for more information and 
help.
    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the Government Printing 
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet 
users may reach the Federal Register's home page at: http://
www.nara.gov/fedreg and the Government Printing Office's database at: 
http://www.access.gpo.gov/nara.

Background

    On July 18, 1997, Mr. Durham applied for a waiver of the vision 
requirement in 49 CFR 391.41(b)(10), which applies to drivers of CMVs 
in interstate commerce. The FHWA denied his application on September 
11, 1998, because Mr. Durham did not have three years of recent 
experience driving with his vision deficiency. He appealed the agency's 
decision to the United States Court of Appeals for the Sixth Circuit on 
November 6, 1998. (Case No. 98-4331, James F. Durham, Jerry W. Parker 
v. United States Department of Transportation, Federal Highway 
Administration, and the United States of America). The FHWA and Mr. 
Durham have agreed to settle the case without further litigation. In 
accordance with that agreement, the FHWA has reconsidered Mr. Durham's 
waiver application and determined that it should be granted for the 
reasons discussed in this notice.
    When Mr. Durham's application was filed on July 18, 1997, the FHWA 
was authorized by 49 U.S.C. 31136(e) to waive application of the vision 
standard if the agency determined the waiver was consistent with the 
public interest and the safe operation of CMVs. Because the statute did 
not limit the effective period of a waiver, the agency had discretion 
to issue waivers for any period warranted by the circumstances of a 
request. On June 9, 1998, the FHWA's waiver authority changed with 
enactment of the Transportation Equity Act for the 21st Century (TEA-
21), Public Law 105-178, 112 Stat.107 (1998). Section 4007 of TEA-21 
amended the waiver provisions of 49 U.S.C. 31315 and 31136(e) to change 
the standard for evaluating waiver requests, to distinguish between a 
waiver and an exemption, and to establish term limits for both. Under 
revised sections 31315 and 31136(e), the FHWA may grant a waiver for a 
period of up to 3 months or an exemption for a renewable 2-year period. 
Mr. Durham's application falls within the scope of an exemption request 
under the revised statute.
    The amendments to 49 U.S.C. 31315 and 31136(e) also changed the 
criteria for exempting a person from application of a regulation. 
Previously, an exemption was appropriate if it was consistent with the 
public interest and the safe operation of CMVs. Now the FHWA may grant 
an exemption 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.'' According to the legislative 
history, Congress changed the statutory standard to give the agency 
greater discretion to consider exemptions. The previous standard was 
judicially construed as requiring an advance determination that 
absolutely no reduction in safety would result from an exemption. 
Congress revised the standard to require that an ``equivalent'' level 
of safety be achieved by the exemption, which would allow for more 
equitable resolution of such matters, while ensuring safety standards 
are maintained. (See H.R. Conf. Rep. No. 105-550, at 489 (1998)).
    Although Mr. Durham's application was filed before enactment of 
TEA-21, the FHWA is required to apply the law in effect at the time of 
its decision unless (1) its application will result in a manifest 
injustice or (2) the statute or legislative history directs otherwise. 
Bradley v. School Board of the City of

[[Page 27026]]

Richmond, 416 U.S. 696 (1974). Insofar as the new standard is 
concerned, nothing in the statute, its history, or the facts in this 
proceeding meets either of these two tests. In fact, the new standard 
is more equitable as it allows an exemption to be based on a reasonable 
expectation of equivalent safety, rather than requiring an absolute 
determination that safety will not be diminished. In addition, the 
``public interest'' finding required under the previous standard is not 
necessary under the new exemption standard. These changes enhance the 
FHWA's discretion to consider exemptions, thus benefitting Mr. Durham 
rather than causing an injustice.
    Although applying TEA-21's new exemption standard does not 
adversely affect Mr. Durham, subjecting his application to the new 
procedural requirements would unfairly affect him. Section 4007 
requires the Secretary of Transportation to promulgate regulations 
specifying the procedures by which a person may request an exemption. 
The statute lists four items of information an applicant must submit 
with an exemption petition and gives the Secretary 180 days to 
implement the new procedural regulations. In accordance with that 
requirement, the FHWA published interim final rules in Docket No. FHWA-
98-4145, Federal Motor Carrier Safety Regulations; Waivers, Exemptions, 
and Pilot Programs; Rules and Procedures, 63 FR 67600, December 8, 
1998, establishing procedures for requesting an exemption under Section 
4007. As the new procedures differ from those in effect when Mr. Durham 
filed his exemption request, it would be manifestly unjust to further 
delay resolution of Mr. Durham's application by requiring him to submit 
information that conforms to the new procedures. To avoid this delay 
and injustice, we will not apply the new procedural requirements of 
section 4007 to Mr. Durham's exemption petition.
    Accordingly, the FHWA has evaluated Mr. Durham's exemption request 
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), applying the new exemption standard in 49 
U.S.C. 31315 and 31136(e). Based on our evaluation, we have determined 
that exempting him from the vision requirement in 49 CFR 391.41(b)(10) 
is likely to achieve a level of safety equal to, or greater than, the 
level that would be achieved without the exemption.

Qualifications of Mr. Durham

    Mr. Durham is 49 years old and has driven CMVs in various 
capacities since 1971. From 1974 to 1989, he worked for Yellow Freight 
System, Inc., in its maintenance department, driving and maintaining 
company equipment. He became a full-time driver for the carrier in July 
1989 and drove approximately 520 miles per week in the Middle Tennessee 
area until April 1996. At that time, the carrier disqualified him from 
driving because his vision did not meet the standard in 49 CFR 
391.41(b)(10) and he lacked a waiver of the vision requirement.
    Mr. Durham's vision deficiency was caused by a penetrating trauma 
to the right eye in 1992. Corneal scarring, aphakia, and retinal 
scarring resulted from the injury and has reduced vision in his right 
eye to finger counting. The uncorrected vision in his left eye measures 
20/15, well within regulation standards. According to his doctor, Mr. 
Durham has variable eye pressure changes in his right eye, but 
otherwise vision is stable in both eyes. The doctor attests that Mr. 
Durham is capable of performing tasks related to driving a CMV 
notwithstanding the limited vision in his right eye.
    Following his injury in 1992, Mr. Durham continued to drive for 
Yellow Freight and was presented a ``Safe Driver Award'' in 1994 
recognizing 13 years of safe driving with the company. After four years 
of driving with his limited vision, he was disqualified as a driver by 
the carrier in April 1996 for failing to meet the Federal vision 
standard. He applied for a waiver in July 1997 and drove part-time for 
TravelCenters of America from October 1997 until July 1998. At that 
time, Mr. Durham stopped driving and returned to Yellow Freight where 
he presently works on the loading docks.
    Mr. Durham's driving record since 1994 contains no traffic 
violations. He was involved in a CMV accident in 1995 that caused 
property damage but no bodily injury. The accident was judged non-
preventable.

Analysis of Mr. Durham's Qualifications

    The Rauenhorst decision requires the FHWA to evaluate Mr. Durham's 
application under criteria applied in the vision waiver program. Among 
other things, that criteria required drivers to have at least 3 years 
of experience driving a CMV with their vision deficiency and a safe 
driving record, as reflected by State records, for the 3 years 
preceding the waiver application. In fact, one basis for adopting the 
3-year requirement was that it corresponds to the period of time for 
which driver records are maintained by the States. (59 FR 50887, 
October 6, 1994.)
    Mr. Durham drove a CMV with his vision deficiency from 1992 until 
April 1996, approximately 4 years. He did not drive for 18-months 
between April 1996 and October 1997, but resumed driving part-time from 
October 1997 until July 1998. Thus, Mr. Durham has approximately 5 
years of experience driving with his vision deficiency overall (1992-
April 1996; October 1997-July 1998).
    The FHWA previously denied Mr. Durham an exemption due to the 15-
month gap in his driving experience during the 3 years immediately 
preceding his application (April 1996-July 1997). In our decision, we 
concluded that Mr. Durham's driving experience was too remote to 
reflect his current ability to drive safely, as driving records are not 
readily available beyond 3 years. Further, physical conditions change 
over time, and current driving ability with the vision deficiency may 
not be reflected in driving experience from 4 or 5 years ago. Thus, we 
declined to accept Mr. Durham's remote experience as a basis for 
projecting future ability to drive safely.
    We have reconsidered our analysis of Mr. Durham's application and 
experience, however, and concluded that unique circumstances related to 
his case enable us to accept his past driving experience as evidence of 
his ability to drive safely in the future. First, we do have a copy of 
Mr. Durham's driving record from 1994 through January 28, 1999, 
reflecting a safe driving record over a 5 year period rather than a 3 
year period. As the record reflects no traffic violations and only one 
accident in a CMV (judged non-preventable) during that 5 year period, 
it supports the conclusion that Mr. Durham is able to drive safely with 
his vision deficiency.
    Next, Mr. Durham's driving record shows that the gap in his driving 
experience did not affect his ability to drive safely. Following his 
18-month driving break between April 1996 and October 1997, Mr. Durham 
drove for 10 months without having an accident or committing a traffic 
violation. That record demonstrates he still has the ability to adapt 
his driving skills to accommodate his limited vision, just as he had 
before the break in experience.
    Finally, medical statements from 1997 and 1998 indicate Mr. 
Durham's vision is stable. As he has driven without an accident or 
traffic violation since October 1997, we think he has demonstrated that 
his physical ability to

[[Page 27027]]

drive safely now is equivalent to his ability 4 to 5 years ago.
    Based upon these factors, the FHWA has determined that Mr. Durham 
has more than three years of creditable safe-driving experience with 
his vision deficiency to satisfy the Rauenhorst criteria and qualify 
for a vision exemption.

Basis for Preliminary Determination to Grant Exemption

    Independent studies support the principle that past driving 
performance is a reliable indicator of an individual's future safety 
record. The studies are filed in FHWA Docket No. FHWA-97-2625 and 
discussed at 63 FR 1524, 1525 (January 9, 1998). We believe we can 
properly apply the principle to monocular drivers because data from the 
vision waiver program clearly demonstrates the driving performance of 
monocular drivers in the program is better than that of all CMV drivers 
collectively. (See 61 FR 13338, March 26, 1996.) That monocular drivers 
in the waiver program demonstrated their ability to drive safely 
supports a conclusion that other monocular drivers, with qualifications 
similar to those required by the waiver program, can also adapt to 
their vision deficiency and operate safely.
    Mr. Durham has qualifications similar to those possessed by drivers 
in the waiver program. His experience and safe driving record operating 
CMVs demonstrate that he has adapted his driving skills to accommodate 
his vision deficiency. For that reason, the FHWA believes exempting him 
from 49 CFR 391.41(b)(10) is likely to achieve a level of safety equal 
to, or greater than, the level that would be achieved without the 
exemption as long as vision in his better eye continues to meet the 
standard specified in 49 CFR 391.41(b)(10). As a condition of the 
exemption, therefore, the FHWA proposes to impose requirements on Mr. 
Durham similar to the grandfathering provisions in 49 CFR 391.64(b) 
applied to drivers who participated in the agency's former vision 
waiver program.
    These requirements are (1) that he be physically examined every 
year (a) by an ophthalmologist or optometrist who attests that vision 
in his better eye meets the standard in 49 CFR 391.41(b)(10), and (b) 
by a medical examiner who attests he is otherwise physically qualified 
under 49 CFR 391.41; (2) that he 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 he provide a 
copy of the annual medical certification to his employer for retention 
in its driver qualification file or keep a copy in his driver 
qualification file if he becomes self-employed. He must also have a 
copy of the certification when driving to present to a duly authorized 
Federal, State, or local enforcement official.
    In accordance with revised 49 U.S.C. 31315 and 31136(e), the 
proposed exemption will be valid for 2 years unless revoked earlier by 
the FHWA. The exemption will be revoked if: (1) Mr. Durham fails to 
comply with the terms and conditions of the exemption; (2) the 
exemption results 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. 31315 and 
31136(e). If the exemption is effective at the end of the 2-year 
period, Mr. Durham may apply to the FHWA for a renewal under procedures 
in effect at that time.

Request for Comments

    In accordance with 49 U.S.C. 31315 and 31136(e), the FHWA is 
requesting public comment from all interested parties on the exemption 
petition and the matters discussed in this notice. All comments 
received before the close of business on the closing date indicated 
above will be considered and will be available for examination in the 
docket room at the above address. Comments received after the closing 
date will be filed in the docket and will be considered to the extent 
practicable, but the FHWA may issue an exemption to Mr. Durham and 
publish in the Federal Register a notice of final determination at any 
time after the close of the comment period. In addition to late 
comments, the FHWA will also continue to file in the docket relevant 
information which becomes available after the closing date. Interested 
persons should continue to examine the docket for new material.
    A copy of this notice will be mailed to compliance and enforcement 
personnel in the State of Tennessee, in accordance with 49 U.S.C. 
31315(b)(7) and 31136(e), and we welcome comments from State officials.

    Authority: 49 U.S.C. 31315 and 31136; 23 U.S.C. 315; 49 CFR 
1.48.

    Issued on: May 12, 1999.
Kenneth R. Wykle,
Federal Highway Administrator.
[FR Doc. 99-12464 Filed 5-17-99; 8:45 am]
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