[Federal Register Volume 65, Number 237 (Friday, December 8, 2000)]
[Notices]
[Pages 77066-77069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31347]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2000-7363]


Qualification of Drivers; Exemption Applications; Vision

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

ACTION: Notice of final disposition.

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SUMMARY: The FMCSA announces its decision to exempt 70 individuals from 
the vision requirement in 49 CFR 391.41(b)(10).

DATES: December 8, 2000.

FOR FURTHER INFORMATION CONTACT: For information about the vision 
exemptions in this notice, Ms. Sandra Zywokarte, Office of Bus and 
Truck Standards and Operations, (202) 366-2987; for information about 
legal issues related to this notice, Mr. Joseph Solomey, Office of the 
Chief Counsel, (202) 366-1374, FMCSA, 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

    You may see all the comments online through the Document Management 
System (DMS) at: http://dmses.dot.gov.

Background

    Seventy-two individuals petitioned the FMCSA for an exemption of 
the vision requirement in 49 CFR 391.41(b)(10), which applies to 
drivers of commercial motor vehicles (CMVs) in interstate commerce. 
They are, Henry Wayne Adams, Willie F. Adams, Fernando Aquilera, Louis 
Edward Aldrige, Larry Neal Arrington, David Ball, Delbert Ronnie Bays, 
Rosa C. Beaumont, Jerry A. Bechtold, Robert F. Berry, James A. Bright, 
Robert R. Buis, David Dominick Bungori, Ronzie L. Carroll, Richard S. 
Carter, Lynn A. Childress, Kevin L. Cole, David R. Cox, Gerald Wade 
Cox, Dempsey Leroy Crawhorn Jr., Thomas P. Cummings, Cedric E. Foster, 
Rosalie A. Gifford, Eugene Anthony Gitzen, Donald Grogan, Elmer Harper, 
Peter L. Haubruck, Joe Marvin Hill, Brian L. Houle, Christopher L. 
Humphries, Craig C. Irish, Donald R. Jackson, Nelson V. Jaramillo, 
Daryl A. Jester, Joseph Vernon Johns, Jimmie W. Judkins, Kurth A. 
Kapke, Johnny M. Kruprzak, Charles R Kuderer, Thomas D. Laws, Demetrio 
Lozano, Wayne Mantela, Kenneth D. May, Jimmy R. Millage, Harold J. 
Mitchell, Gordon L. Nathan, Jerry L. New, Bernice Ray Parnell, Aaron 
Pennington, Clifford C. Priesmeyer, George S Rayson, Kevin D. Reece, 
Franklin Reed, Arthur A. Sappington, James L. Schneider, Patrick W. 
Shea, Carl B. Simonye, Ernie Sims, William H Smith, Paul D. Spalding, 
Richard Allen Strange, Steven Carter Thomas, George Walter Thornhill, 
Rick N. Ulrich, Roy F. Varnado, Henry Lee Walker, Larry D. Wedekind, 
Daniel Wilson, Emmett E. Windhorst, Wonda Lue Wooten, Thomas Long and 
Gary Bryan.
    Under 49 U.S.C. 31315 and 31136(e), the FMCSA may grant an 
exemption for a renewable 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.'' 
Accordingly, the FMCSA evaluated the petitions on their merits and made 
a preliminary determination that the exemptions should be granted. On 
July 25, 2000, the agency published a notice of its preliminary 
determination and requested comments from the public (65 FR 45817). The 
comment period closed on August 24, 2000. Two comments were received, 
and their contents were carefully considered by the FMCSA in reaching 
the final decision to grant the petitions.
    In the case of applicant Kevin Cole, the FMCSA has denied Mr. 
Cole's request for an exemption from the vision requirements of 49 CFR 
391.41(b)(10). Mr. Cole was notified previous to this announcement by 
letter of his denial. The purpose of publishing his denial here is 
simply to comply with 49 U.S.C. 31315(b)(4)(c), by periodically 
publishing in the Federal Register the names of persons denied 
exemptions and the reasons for such denials.
    After the agency published its preliminary determination to grant 
Mr. Cole an exemption, he indicated in a conversation with a member of 
our staff on August 2, 2000, that he had not driven a CMV during the 
required 3-year period. Therefore, the FMCSA is unable to conclude that 
granting him an exemption is likely to achieve a level of safety equal 
to that existing without the exemption as required by 49 U.S.C. 31315 
and 31136(e). In the case of applicant Joe Marvin Hill, Mr. Hill passed 
away.

Vision and Driving Experience of the Applicants

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

    Since 1992, the FHWA has undertaken studies to determine if this 
vision standard should be amended. The final report from our medical 
panel recommends changing the field of vision standard from 70 deg. to 
120 deg., while leaving the visual acuity standard unchanged. (See 
Frank C. Berson, M.D., Mark C. Kuperwaser, M.D., Lloyd Paul Aiello, 
M.D., and James W. Rosenberg, M.D., ``Visual Requirements and 
Commercial Drivers,'' October 16, 1998, filed in the docket, FHWA-98-
4334.) The panel's conclusion supports the FMCSA's (and previously the 
FHWA's) view that the present standard is reasonable and necessary as a 
general standard to ensure highway safety. The FMCSA also 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.

[[Page 77067]]

    The 70 applicants fall into this category. They are unable to meet 
the vision standard in one eye for various reasons, including 
amblyopia, corneal and macular scars, and loss of an eye due to trauma. 
In most cases, their eye conditions were not recently developed. All 
but 26 of the applicants were either born with their vision impairments 
or have had them since childhood. The 26 individuals who sustained 
their vision condition as adults have had them for periods ranging from 
8 to 36 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, can perform all the 
tasks necessary to operate a CMV. The doctors' opinions are supported 
by the applicants' possession of a valid commercial driver's license 
(CDL) or non-CDL to operate a CMV. Before issuing a CDL, States subject 
drivers to knowledge and performance tests designed to evaluate their 
qualifications to operate the 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. The Federal interstate qualification 
standards, however, require more.
    While possessing a valid CDL or non-CDL, these 70 drivers have been 
authorized to drive a CMV in intrastate commerce even though their 
vision disqualifies them from driving in interstate commerce. They have 
driven CMVs with their limited vision for careers ranging from 3 to 42 
years. In the past 3 years, the 70 drivers had 13 convictions for 
traffic violations among them. Eight of these convictions were for 
speeding. The other convictions consisted of: ``Failure to obey traffic 
signal''; ``Unauthorized towing''; ``Expiration/no drivers license''; 
``Failure to yield the right of way to an emergency vehicle'' and; 
``Load dropping/shifting/escaping.'' Four drivers were involved in 
accidents in their CMVs, but did not receive a citation.
    Except for two applicants (Thomas J. Long and Gary Bryan), the 
qualifications, experience, and medical condition of each applicant 
were stated and discussed in detail in a July 25, 2000, notice (65 FR 
45817). The qualifications of Mr. Long were stated in an April 14, 
2000, notice (65 FR 20245) and Mr. Bryan's were stated in a May 23, 
2000, notice (65 FR 33406). Since docket comments did not focus on the 
specific merits or qualifications of any applicant, we have not 
repeated the individual profiles here. With three exceptions, our 
summary analysis of the applicants as a group is supported by the 
information published at 65 FR 45817, 65 FR 20245 and 65 FR 33406.
    Mr. Long's speeding conviction in a CMV was not reported in the 
April 14, 2000, notice. The ticket showed he was driving 75 mph in a 45 
mph zone. Mr. Long has no accidents or other convictions in a CMV on 
his driving record for the 3-year period.
    A final decision regarding Mr. Bryan's application for a vision 
exemption was delayed pending receipt of a copy of his Utah motor 
vehicle record (MVR). He had held a Utah license during the 3-year 
review period, before moving to Montana. Mr. Bryan faxed us a copy of 
his Utah MVR on August 28, 2000. His official driving record from Utah 
and Montana show no accidents and no convictions for moving violations 
in a CMV for the last 3 years.
    In Mr. May's case, his August 29 speeding conviction in a CMV was 
not reported in the July 25, 2000 notice. The citation showed he was 
driving 67 mph in a 55 mph zone. Mr. May has no accidents or other 
convictions in a CMV on his driving record for the 3-year period.

Basis for Exemption Determination

    Under 49 U.S.C. 31315 and 31136(e), the 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 these drivers to drive in 
interstate commerce as opposed to restricting them to driving in 
intrastate commerce.
    To evaluate the effect of these exemptions on safety, the FMCSA 
considered not only the medical reports about the applicants' vision, 
but also their driving records and experience with the vision 
deficiency. 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 accidents and traffic 
violations. Copies of the studies have been added to the docket (FHWA-
98-3637).
    We believe we can properly apply the principle to monocular drivers 
because data from the vision waiver 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.) That experienced monocular drivers with good 
driving records in the waiver program demonstrated their ability to 
drive safely 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 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 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 70 applicants, we note that cumulatively the applicants have had 
only four accidents and 13 traffic violations in the last 3 years. None 
of the accidents resulted in the issuance of a citation against the 
applicant. 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, the FMCSA

[[Page 77068]]

concludes their ability to drive safely can be projected into the 
future.
    We believe the applicants' intrastate driving experience provides 
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 exist on interstate highways. Faster reaction to 
traffic and traffic signals is generally required because distances are 
more compact than on highways. 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 or she 
has been performing in intrastate commerce. Consequently, the FMCSA 
finds that exempting 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 will grant 
the exemptions for the 2-year period allowed by 49 U.S.C. 31315 and 
31136(e).
    We recognize that the vision of an applicant may change and affect 
his/her ability to operate a commercial vehicle as safely as in the 
past. As a condition of the exemption, therefore, the FMCSA will impose 
requirements on the 70 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, retains a copy in his/her driver qualification file 
if he/she is self-employed. The driver must also have a copy of the 
certification on his/her person while driving for presentation to a 
duly authorized Federal, State, or local enforcement official.

Discussion of Comments

    The FMCSA received two comments in this proceeding. The comments 
were considered and are discussed below.
    The Advocates for Highway and Auto Safety (AHAS) expresses 
continued opposition to the FMCSA's policy to grant exemptions from the 
Federal Motor Carrier Safety Regulations (FMCSRs), including the driver 
qualification standards. Specifically, the AHAS: (1) Asks the agency to 
clarify the consistency of the exemption application information, (2) 
objects to the agency's reliance on conclusions drawn from the vision 
waiver program, (3) raises procedural objections to this proceeding, 
(4) claims the agency has misinterpreted statutory language on the 
granting of exemptions (49 U.S.C. 31315 and 31136(e)), and finally, (5) 
suggests that a recent Supreme Court decision affects the legal 
validity of vision exemptions.
    The issues raised by the AHAS 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) and 65 FR 57230 
(September 21, 2000). We will not address these points again herein but 
refer interested parties to those earlier discussions.
    The Licensing Operations of the California Department of Motor 
Vehicles (DMV) submitted the following comments: ``California is 
opposed to the granting of exemptions due to Federal Motor Carrier 
Safety Regulations (FMCSRs) Section 381.600 which states that once a 
waiver, exemption, or pilot program is authorized it preempts any State 
law or regulation that conflicts with or is inconsistent with the 
waiver, exemption or pilot program with respect to a person operating 
under the waiver or exemption or participating in the pilot program. 
For traffic safety, California restricts all CDL drivers who do not 
meet the medical requirements from operating buses, transporting any 
material that requires placards or markings, and interstate commerce.'' 
Although ambiguous, this appears to mean that the CDLs issued to 
drivers who do not comply with the physical qualification standards in 
49 CFR Part 391 include special prohibitions on operating (1) buses or 
vehicles transporting placardable quantities of hazardous materials in 
intrastate commerce, and (2) all vehicles in interstate commerce. 
California CDL holders who fail to meet the standards in 391.41 are 
thus limited to intrastate commerce, but even they are not allowed to 
drive buses or hazmat vehicles.
    The California DMV has not opposed the granting of exemptions in 
the past, but its Legal Branch has now concluded that once an exemption 
is granted, the State would not be able to continue prohibiting 
Federally exempted drivers holding California CDLs from operating in 
interstate commerce, even if they were transporting passengers or 
hazardous materials.
    Under the Commercial Motor Vehicle Safety Act of 1986, the FMCSA 
sets minimum testing and licensing standards for drivers of commercial 
motor vehicles (CDL-CMVs), and the States issue CDLs in accordance with 
those standards. In most cases, a State may therefore establish more 
stringent CDL testing and licensing standards, as California appears to 
have done. However, Sec. 4007(a) of the Transportation Equity Act for 
the 21st Century (TEA-21), now codified at 49 U.S.C. 31315, preempts 
``any State law or regulation that conflicts with or is inconsistent 
with the * * * exemption * * *'' 49 U.S.C. 31315(d). Under the normal 
canons of statutory interpretation, the Federal preemption statute 
supersedes State authority to set more stringent CDL standards because 
section 31315(d) is both subsequent to and more specific than the 
CMVSA.
    A driver who intended to operate in interstate commerce and held an 
FMCSA vision exemption could lawfully certify to California under 49 
CFR 383.71(a)(1) that he or she met the physical qualification 
standards of section 391.41. The preemption required by section 
31315(d) and 49 CFR 381.600 means that the driver could not be denied 
an unrestricted CDL by California because of deficient vision or 
prohibited from driving any kind of vehicle in interstate commerce 
(though it could issue a CDL valid for no more than the period of the 
FMCSA exemption). California would of course be required to ensure that 
the applicant passed the general CDL examination and the skills/
knowledge tests required for any endorsement the driver is seeking.
    On the other hand, an applicant for a CDL who intended to operate 
in intrastate commerce could not obtain an FMCSA exemption, since the 
agency has jurisdiction, for purposes of the physical qualification 
standards, only over drivers in interstate commerce. The Motor Carrier 
Safety Assistance Program (MCSAP) regulations allow participating 
States (including California) to set lower physical qualification 
standards for drivers operating exclusively in

[[Page 77069]]

intrastate commerce 49 CFR 350.341 (h), see 65 FR 15092, at 15109, 
March 21, 2000. They are not required to do so, however. California 
could therefore issue a driver who did not meet the standards of 
section 391.41 an intrastate CDL (i.e., one valid only within the 
State) which prohibited the driving of buses or hazmat vehicles.
    The California DMV further commented that it would continue to 
oppose all requests for waivers or exemptions that did not prohibit the 
driver from transporting passengers and hazardous materials. The FMCSA 
stands by its previous response to California on this issue (see 65 FR 
161, January 3, 2000). We believe it is unnecessary to impose any 
further restrictions on these drivers, since a waiver of or exemption 
from 49 CFR 391.41(b)(10) expresses the agency's conclusion that the 
driver will likely perform just as safely as a driver who met the 
standard.
    Notwithstanding the FMCSA's ongoing review of the vision standard, 
as evidenced by the medical panel's report dated October 16, 1998, and 
filed in the docket (FHWA-98-4334), the FMCSA must comply with 
Rauenhorst v. United States Department of Transportation, Federal 
Highway Administration, 95 F.3d 715 (8th Cir. 1996), and grant 
individual exemptions under standards that are consistent with public 
safety. Meeting those standards, the 70 veteran drivers in this case 
have demonstrated to our satisfaction that they can continue to operate 
a CMV with their current vision safely in interstate commerce because 
they have demonstrated their ability in intrastate commerce. 
Accordingly, they qualify for an exemption under 49 U.S.C. 31315 and 
31136(e).

Conclusion

    After considering the comments to the docket and based upon its 
evaluation of the 70 exemption applications in accordance with the 
Rauenhorst decision, the FMCSA exempts Henry Wayne Adams, Willie F. 
Adams, Fernando Aquilera, Louis Edward Aldrige, Larry Neal Arrington, 
David Ball, Delbert Ronnie Bays, Rosa C. Beaumont, Jerry A. Bechtold, 
Robert F. Berry, James A. Bright, Robert R. Buis, David Dominick 
Bungori, Ronzie L. Carroll, Richard S. Carter, Lynn A. Childress, David 
R. Cox, Gerald Wade Cox, Dempsey Leroy Crawhorn Jr., Thomas P. 
Cummings, Cedric E. Foster, Rosalie A. Gifford, Eugene Anthony Gitzen, 
Donald Grogan, Elmer Harper, Peter L. Haubruck, Brain L. Houle, 
Christopher L. Humphries, Craig C. Irish, Donald R. Jackson, Nelson V. 
Jaramillo, Daryl A. Jester, Joseph Vernon Johns, Jimmie W. Judkins, 
Kurth A. Kapke, Johnny M. Kruprzak, Charles R Kuderer, Thomas D. Laws, 
Demetrio Lozano, Wayne Mantela, Kenneth D. May, Jimmy R. Millage, 
Harold J. Mitchell, Gordon L. Nathan, Jerry L. New, Bernice Ray 
Parnell, Aaron Pennington, Clifford C. Priesmeyer, George S Rayson, 
Kevin D. Reece, Franklin Reed, Arthur A. Sappington, James L. 
Schneider, Patrick W. Shea, Carl B. Simonye, Ernie Sims, William Smith, 
Paul D. Spalding, Richard Allen Strange, Steven Carter Thomas, George 
Walter Thornhill, Rick N. Ulrich, Roy F. Varnado, Henry Lee Walker, 
Larry D. Wedekind, Daniel Wilson, Emmett E. Windhorst, Wonda Lue 
Wooten, Thomas Long, and Gary Bryan from the vision requirement in 49 
CFR 391.41(b)(10), subject to the following conditions:
    (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 its driver qualification file, or keep 
a copy in his/her driver qualification file if he/she is self-employed. 
The driver must also have a copy of the certification when driving so 
it may be presented to a duly authorized Federal, State, or local 
enforcement official.
    In accordance with 49 U.S.C. 31315 and 31136(e), each exemption 
will be valid for 2 years unless revoked earlier by the 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. 31315 and 31136. If the exemption is 
still effective at the end of the 2-year period, the person may apply 
to the FMCSA for a renewal under procedures in effect at that time.

    Authority: 49 U.S.C. 322, 31315 and 31136; 49 CFR 1.73.

    Issued on: December 4, 2000.
Brian M. McLaughlin,
Director, Office of Policy Plans and Regulations.
[FR Doc. 00-31347 Filed 12-7-00; 8:45 am]
BILLING CODE 4910-EX-P