[Federal Register Volume 65, Number 73 (Friday, April 14, 2000)]
[Notices]
[Pages 20254-20257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-9256]


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

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. 2000-6938]


Qualification of Drivers; Exemption Applications; Vision

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

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

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

SUMMARY: This notice announces the FMCSA's preliminary determination to 
grant the application of Todd E. Kautzman for an exemption from the 
vision requirements in the Federal Motor Carrier Safety Regulations 
(FMCSR). Granting the exemption will enable Mr. Kautzman 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 May 15, 2000.

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) 366-2519, Federal Motor Carrier Safety 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 may 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 Office of 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 and Procedural History

    Mr. Kautzman originally applied for a waiver of the vision standard 
in 1995 when the Federal Highway Administration (FHWA) performed motor 
carrier safety functions within the Department of Transportation. On

[[Page 20255]]

January 1, 2000, the Federal Motor Carrier Safety Administration 
(FMCSA) was created and assumed responsibility for performing the motor 
carrier safety functions involved in this case. (See Motor Carrier 
Safety Improvement Act of 1999, Public Law 106-159, 113 Stat. 1748). 
Accordingly, the FMCSA is now the appropriate agency to consider Mr. 
Kautzman's exemption request.
    Mr. Kautzman's application for an exemption has a lengthy history 
that is intertwined with the development and demise of the vision 
waiver study program conducted by the Office of Motor Carriers within 
the Federal Highway Administration. The history of that program forms 
the backdrop for our discussion and evaluation of his exemption 
application.
    In 1992, the FHWA began a review of the vision standard in response 
to several waiver applications and congressional committee reports 
requesting such review. See 57 FR 6793, February 28, 1992. A 
commissioned study by the Ketron Corporation noted that adequate vision 
in both eyes is critical to driving and recommended that the current 
rule requiring binocular visual acuity of 20/40 in each eye not be 
changed. Id. at 6794-95. The study suggested that efforts be made to 
generate better empirical statistics for vision-impaired drivers.
    In March 1992, a plan to obtain empirical data was implemented. The 
FHWA established a vision waiver study program in which experienced 
vision-impaired drivers would be granted temporary waivers for a period 
of up to three years. Their driving records during that period would be 
evaluated to determine if they could safely operate a CMV and if the 
vision standard could be changed. See 57 FR 10295, March 25, 1992. 
Under the program, waivers were available to drivers with good driving 
records for at least three years and with vision in one eye meeting the 
Federal standard of at least 20/40 (Snellen). 57 FR 31458, 31460, July 
16, 1992. We stressed from the beginning of the program that ``[a]ll 
drivers eligible for a waiver have proven experience and have 
demonstrated their ability to safely operate a CMV for a number of 
years.'' Id., at 31459.
    The conservative screening criteria applied to drivers in the 
program was not enough to overcome a challenge to the program's 
legality. In August 1994, the D.C. Circuit invalidated the vision 
waiver program ``because the agency lacked the data necessary to 
support its determination that the vision waiver program `is consistent 
with the safe operation of commercial motor vehicles.' '' Advocates for 
Highway and Auto Safety v. FHWA, 28 F.3d 1288 (D.C. Cir. 1994) (quoting 
49 U.S.C. App. 2505(f) (1988)). The court held that any waiver of 
Federal safety regulations must be supported by empirical data showing 
that the waiver is consistent with the safe operation of commercial 
motor vehicles. Because the agency had acknowledged the lack of 
empirical data to establish a link between vision disorders and 
commercial motor vehicle safety, the court held that it was improper 
for the agency to conclude that granting the temporary waivers was 
consistent with the safe operation of commercial motor vehicles. Id.
    In reaching this conclusion, the court rejected the agency's 
finding that the temporary waiver program was consistent with safety 
because it limited waivers to only those drivers with proven experience 
and good driving records. Id. at 1293. These factors, the court held, 
``beg the question whether those sight-impaired drivers will be able to 
operate their CMVs with the same degree of safety as those who meet the 
agency's current vision standards.'' Id. The court therefore vacated 
the agency's rule creating the program and remanded to the agency for 
further rulemaking proceedings.
    In response to the remand, the FHWA proposed to revalidate the 
waiver study program. 59 FR 50887, October 6, 1994. The agency 
explained the underlying basis for the original vision waiver program, 
noting that a requirement that participating drivers ``have a three-
year safe driving record with their vision impairment'' was based upon 
studies ``indicating that past experience can be used to predict future 
performance * * *.'' Id. at 50888. It also ``relied upon opinions from 
the medical community that individuals with vision impairments are 
often able to compensate for that impairment over a period of time.'' 
Ibid. The agency chose three years to provide ``added assurance that 
drivers would have sufficient time to develop compensatory behavior'' 
and because it was the longest period of time for which driver 
histories were available. Ibid. Based on these principles and 
additional studies, the FHWA again determined ``that three years of 
safe driving experience with the vision deficiency not only allowed for 
sufficient adjustment by drivers to the condition, but also provided 
the longest period of experience for which records were uniformly 
available from which to predict future performance.'' Id. at 50889.
    We then determined that sufficient evidence existed to show that 
continued waiver for the group of drivers currently remaining in the 
program would be consistent with safety. Id. at 50891. We based this 
finding upon studies showing that past accident-free performance tends 
to indicate safe performance in the future, as well as interim results 
showing that the remaining drivers in the program had accident rates 
lower than the general driving population. Id. at 50890. The agency 
also recognized that elimination of the waiver study program would mean 
that drivers with known safety records would be replaced by less-
experienced drivers with unproven safety records. Ibid. In addition, 
the agency noted that by March 1996, ``approximately 93 percent of the 
drivers presently participating in the study will have completed at 
least three years driving in the study program.'' Id. at 50891.
    The Advocates for Highway and Auto Safety (AHAS) filed an emergency 
motion the same day the notice was published in the Federal Register 
asking the court to enforce its decision invalidating the program. On 
October 21, 1994, the court issued its mandate restating that the rule 
authorizing the vision waiver program was vacated, and remanded the 
case to the FHWA. Three days later, the court denied the AHAS motion, 
presumably finding that the agency had complied with the remand. The 
FHWA thereafter published a notice of final determination, announcing 
its decision to continue the waiver program through March 1996 for 
those drivers in the program. 59 FR 59386, November 17, 1994.
    At this point--when the program was limited to existing 
participants as a consequence of the AHAS decision and the final 
determination--Mr. Kautzman first applied for a vision waiver. His May 
1995 application was denied by the FHWA on September 5, 1995, on the 
basis that the program was closed to new participants. Mr. Kautzman 
appealed the agency's denial to the United States Court of Appeals for 
the Eighth Circuit, the same court before which a similar appeal by 
David R. Rauenhorst was pending. As the cases involved the same issue, 
the court approved an agreement between the FHWA and Mr. Kautzman to 
hold his case in abeyance until Mr. Rauenhorst's case was decided and 
then apply the Rauenhorst decision to Mr. Kautzman's case.
    While the cases progressed, the vision waiver study program expired 
by its own terms on March 31, 1996. The FHWA issued ``grandfather'' 
rights to the drivers remaining in the program so they could continue 
to drive a CMV in interstate commerce. (49 CFR 391.64). This decision 
was based on their continuous and sustained safe

[[Page 20256]]

performance which showed that this particular group of monocular 
drivers could operate without compromising safety. 61 FR 13338, 13345, 
March 26, 1996. We emphasized in our decision that the drivers were 
experienced from the beginning, had been heavily monitored, and that 
the poorest performers had been eliminated. Ibid.
    Shortly after the FHWA issued permanent waivers to the drivers in 
the waiver study program, the Eighth Circuit issued its decision in 
Rauenhorst v. United States Department of Transportation, Federal 
Highway Administration, 95 F.3d 715 (8th Cir. 1996). Mr. Rauenhorst was 
a monocular truck driver who would have met the criteria for admission 
to the waiver group, but who did not apply. See id. at 717-718. He 
later applied for an individual waiver and sought review of the 
agency's denial. The court held that the FHWA erred in failing to 
consider Mr. Rauenhorst's application for a waiver and directed the 
agency to grant ``separate, individually tailored waivers'' grounded on 
``specific tests or standards.'' Id. at 723.
    After Rauenhorst, the FHWA began granting individual waivers for 
monocular drivers who met the same criteria as the drivers who 
participated in the waiver study program. For instance, we granted Mr. 
Rauenhorst a waiver, finding ``that he has adapted his driving 
techniques to accommodate the limited vision in his right eye.'' 63 FR 
1524, 1525, January 9, 1998. His application reflected over 21 years of 
experience driving with his vision deficiency and an accident-free 
record. Ibid. Similarly, we granted waivers to another 12 applicants 
who met the waiver study program criteria and thus demonstrated that 
they had adapted their driving skills to accommodate their vision 
deficiency. 63 FR 54519, October 9, 1998.
    To conform with the Rauenhorst ruling, the FHWA agreed to 
individually evaluate Mr. Kautzman's application on its merits. The 
FHWA requested specific information and documentation from Mr. Kautzman 
about his driving experience and physical condition in correspondence 
exchanged between February 1997 and March 1998. Mr. Kautzman's 
responses were inconsistent. According to one statement, he stopped 
driving in April 1995. According to another, he stopped driving in 
October 1996. Both dates created a significant gap between the time he 
stopped driving and July 28, 1997, when he provided information about 
his driving experience following the Rauenhorst decision. Because of 
the gap, the FHWA concluded that Mr. Kautzman failed to present 
evidence of 3 years' recent driving experience, a requirement in the 
vision waiver program. In addition, the agency could not determine 
exactly how much driving experience Mr. Kautzman had due to his 
contradictory statements. Thus, the FHWA denied his application on 
November 13, 1998.
    Mr. Kautzman appealed the agency's decision (Todd E. Kautzman and 
Richard Carlson v. United States Department of Transportation, Federal 
Highway Administration, and the United States of America, No. 99-1070 
(8th Cir. docketed Jan. 7, 1999)). The FHWA and Mr. Kautzman agreed to 
settle the case by remanding his application to the agency for 
reconsideration without regard to driving gaps arising during 
litigation. As part of the settlement, Mr. Kautzman provided the FHWA 
with an affidavit of his driving experience to resolve the 
discrepancies in his previous submissions. Using that information, we 
have evaluated his application as of the original filing date, May 22, 
1995, without regard to gaps in experience after April 12, 1995, as 
required by the litigation settlement agreement. In accordance with 49 
U.S.C. 31315 and 31136(e), we have preliminarily determined that 
exempting Mr. Kautzman from the vision requirement is likely to achieve 
a level of safety equal to, or great than, the level that would be 
achieved without the exemption.

Mr. Kautzman's Experience and Vision Condition

    Mr. Kautzman has held a license to drive a commercial motor vehicle 
since 1986. His current CDL was issued by the State of North Dakota and 
expires on April 12, 2002. According to medical statements, Mr. 
Kautzman suffered a traumatic injury to his left eye at age one when a 
rubber-band projectile hit the central part of the cornea, destroying 
the central vision. Left eye vision measures 20/400 corrected or 
uncorrected. Right eye vision measures 20/15 corrected. According to 
his doctor, Mr. Kautzman's vision condition is stable and does not 
interfere with his ability to drive a CMV.
    Mr. Kautzman began his driving career as a self-employed, part-time 
driver. From January 1989 until August 1, 1992, he transported 
agricultural products two Saturdays per month, driving about 5 hours 
each day. He became a full-time, self-employed driver on August 1, 
1992, and worked 78 hours a week transporting grain, fertilizer, and 
feed in interstate commerce until April 12, 1995.
    Mr. Kautzman stopped driving on April 12, 1995, when he found he 
was not qualified in interstate commerce, and took immediate steps to 
seek a waiver from the vision standard. No consideration was given to 
his application at that time because the vision waiver program had 
ceased to operate. As the FMCSA is responsible for delaying 
consideration of his application until now, our agreement to settle the 
most recent lawsuit and the interest of equity constrain us to consider 
his application without regard to his lack of driving since April 1995.

Analysis of Mr. Kautzman's Qualifications

    Visual capacity in Mr. Kautzman's left eye measures 20/400 
(Snellen) with or without correction. The standard applicable to 
drivers of commercial motor vehicles in interstate commerce requires 
vision in each eye to measure at least 20/40 Snellen, corrected or 
uncorrected (49 CFR 391.41(b)(10)). As his vision does not meet the 
regulation's standard, Mr. Kautzman cannot qualify to drive in 
interstate commerce unless he is exempted from its applicability.
    Mr. Kautzman holds a valid CDL today, just as he did in 1995. The 
vision condition of his left eye has long been stable, and his right 
eye meets the vision standard. Moreover, his doctor does not believe 
the vision deficiency affects Mr. Kautzman's ability to perform the 
tasks involved in driving a CMV safely. Other than the vision 
deficiency in his left eye, Mr. Kautzman meets all other physical 
qualification standards in 49 CFR part 391. Furthermore, his driving 
record from 1992 to the present reflects none of the disqualifying 
conditions specified in the vision waiver criteria.
    In the three years prior to April 12, 1995, Mr. Kautzman had 
considerable experience driving a CMV. Until August 1, 1992, he spent 
three years driving a CMV casually, 10 hours a month, transporting 
agricultural products. From August 1, 1992, through April 12, 1995, he 
drove a tractor-trailer combination transporting feed and grain, 
regularly 78 hours a week. If he averaged a modest 40 miles per hour, 
Mr. Kautzman would have compiled over 300,000 accident-free, incident-
free, violation-free miles in both inter- and intrastate commerce. If 
any applicant presented such a three-year record to the agency today, 
undoubtedly an exemption would be approved under the criteria we have 
been employing.
    The only evidence we have of Mr. Kautzman's safety record since 
1995 is that which he compiled in a private automobile (non-CMV). It 
shows that he had two speeding convictions, one in

[[Page 20257]]

1997 and one in 1998. The agreement settling Mr. Kautzman's lawsuit 
does not preclude the agency's consideration of such safety events. 
Neither conviction, however, would have been disqualifying, even if the 
violation had been committed in a CMV, and there is no cause to 
conclude that either conviction related to Mr. Kautzman's visual 
deficiency.

Basis for Preliminary Determination To Grant Exemption

    Independent studies support the principle that past driving 
performance is a reliable indicator of future safety. 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 
demonstrate 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.
    In evaluating applications, it is the policy of the agency to 
screen out submissions which do not meet the criteria for consideration 
in terms of minimum visual capacity, duration and recency of CMV 
driving experience, and driving record. Thereafter, each application is 
individually considered on its merits. To be sure, in Mr. Kautzman's 
case, his experience and safe driving record in a CMV are not as recent 
as would normally pass the initial screening. The unique circumstances 
of this case justify special consideration due to the protracted 
litigation. In Mr. Kautzman's case, therefore, the FMCSA is dispensing 
with the screening stage, and has considered his case on the merits. 
Mr. Kautzman has qualifications similar to those possessed by drivers 
in the waiver program. His actual driving of CMVs was unusually intense 
over a 32-month period in all periods of the day and night, and under 
varying highway conditions. His experience and safe driving record 
operating CMVs demonstrate that he had adapted his driving skills to 
accommodate his vision deficiency. For these reason, and under the 
conditions set forth below, the FMCSA believes exempting this applicant 
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 FMCSA proposes to impose requirements on Mr. 
Kautzman 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 the following: (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 is 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 FMCSA. The exemption will be revoked if: (1) Mr. Kautzman 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. Kautzman may apply to the FMCSA 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 FMCSA 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 FMCSA may issue an exemption to Mr. Kautzman 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 FMCSA 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 North Dakota, 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. 322, 31315 and 31136; 49 CFR 1.73.

    Issued on: April 6, 2000.
Julie Anna Cirillo,
Acting Deputy Administrator.
[FR Doc. 00-9256 Filed 4-13-00; 8:45 am]
BILLING CODE 4910-22-P