WAIS Document Retrieval[Federal Register: January 3, 2000 (Volume 65, Number 1)]
[Notices]               
[Page 159-162]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03ja00-65]                         

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DEPARTMENT OF TRANSPORTATION

Office of Motor Carrier Safety
[OMCS Docket No. 99-6156 (formerly FHWA Docket No. 99-6156)]

 
Qualification of Drivers; Exemption Applications; Vision

AGENCY: Office of Motor Carrier Safety (OMCS), DOT.

ACTION: Notice of final disposition.

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SUMMARY: The OMCS announces its decision to exempt 40 individuals from 
the vision requirement in 49 CFR 391.41(b)(10).

DATES: January 3, 2000.

FOR FURTHER INFORMATION CONTACT: For information about the vision 
exemptions in this notice, Ms. Sandra Zywokarte, Office of Motor 
Carrier Research and Standards, (202) 366-2987; for information about 
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 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 web 
page at: http://www.access.gpo.gov/nara.

Background

    The Secretary has rescinded the authority previously delegated to 
the Federal Highway Administration to perform motor carrier functions 
and operations. This authority has been redelegated to the Director, 
Office of Motor Carrier Safety (OMCS), a new office within the 
Department of Transportation [64 FR 56270, October 19, 1999]. This 
explains the docket transfer. The new OMCS assumes the motor carrier 
functions previously performed by the FHWA's Office of Motor Carrier 
and Highway Safety (OMCHS). Ongoing rulemaking, enforcement, and other 
activities of the OMCHS, initiated while part of the FHWA, will be 
continued by the OMCS. The redelegation will cause no changes in the 
motor carrier functions and operations of the offices or resource 
centers.
    Forty individuals petitioned the FHWA 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. The OMCS is 
now responsible for processing the vision exemption applications of the 
40 drivers. They are Herman Bailey, Jr., Mark A. Baisden, Brad T. 
Braegger, Kenneth Eugene Bross, Erick H. Cotton, Fletcher E. Creel, 
Richard James Cummings, Daniel R. Franks, William L. Frigic, Curtis 
Nelson Fulbright, Victor Bradley Hawks, Vincent I. Johnson, Myles E. 
Lane, Sr., Dennis J. Lessard, Jon G. Lima, Richard L. Loeffelholz, 
Herman Carl Mash, Joseph M. Porter, Richard Rankin, Robert G. Rasicot, 
A.W. Schollett, Melvin B. Shumaker, Clark H. Sullivan, Wayland O. 
Timberlake, Norman R.Wilson, Larry M. Wink, Jeffrey G. Wuensch, Jon H. 
Wurtele, Walter M. Yohn, Jr., Steven H. Heidorn, James Donald Simon, 
William A. Bixler, Woodrow E. Bohley, George L. Silvia, Martin Postma, 
Steven L. Valley, Phillip P. Smith, Robert W. Nicks, Frank T. Miller, 
and Roger Allen Dennison. Under 49 U.S.C. 31315 and 31136(e), the OMCS 
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 OMCS evaluated the petitions on their 
merits and made a preliminary determination that the waivers should be 
granted. On July 26, 1999, the agency published notice of its 
preliminary determination and requested comments from the public (64 FR 
54948). The comment period closed on November 8, 1999. Two comments 
were received, and their contents were carefully considered by the OMCS 
in reaching the final decision to grant the petitions.

Vision and Driving Experience of the Applicants

    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.

    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

[[Page 160]]

leaving the visual acuity standard unchanged. (See Frank C. Berson, 
Mark C. Kuperwaser, Lloyd Paul Aiello, and James W. Rosenberg, ``Visual 
Requirements and Commercial Drivers,'' October 16, 1998, filed in the 
docket). The panel's conclusion supports the OMCS'' (and previously the 
FHWA's) view that the present standard is reasonable and necessary as a 
general standard to ensure highway safety. The OMCS 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.
    The 40 applicants fall into this category. They are unable to meet 
the vision standard in one eye for various reasons, including 
amblyopia, retinal detachment, macular defect, and loss of an eye due 
to trauma. In most cases, their eye conditions were not recently 
developed. All but 14 applicants were either born with their vision 
impairments or have had them since childhood. The 14 individuals who 
sustained their vision conditions as adults have had them for periods 
ranging from 3 to 40 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). 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, these 40 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 5 to 53 years. 
In the past 3 years, the 40 drivers had a total of four moving 
violations among them. Two drivers were involved in accidents in their 
CMVs, but none of the CMV drivers received a citation.
    The qualifications, experience, and medical condition of each 
applicant were stated and discussed in detail in an October 8, 1999, 
notice (64 FR 54948). Since the docket comments did not focus on the 
specific merits or qualifications of any applicant, we have not 
repeated the individual profiles here. Our summary analysis of the 
applicants as a group, however, is supported by the information 
published at 64 FR 54948.

Basis for Exemption Determination

    Under 49 U.S.C. 31315 and 31136(e), the OMCS 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 OMCS 
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.
    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 to 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 40 applicants, we note that cumulatively the applicants have had 
only two accidents and four moving violations in the last 3 years. None 
of the violations involved a serious traffic violation as defined in 49 
CFR 383.5, and neither of the accidents resulted in a citation. 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 OMCS concludes their ability to 
drive safely can be projected into the future.
    We believe 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 5

[[Page 161]]

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 OMCS 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 OMCS will impose 
requirements on the 40 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 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.

Discussion of Comments

    The OMCS received two comments in this proceeding. Each comment was 
considered and is discussed below.
    The Licensing Operations Division of the California Department of 
Motor Vehicles commented, in the case of applicant 6 (Mr. Fletcher E. 
Creel), that it does not oppose the granting of an exemption from the 
Federal vision requirements to Mr. Creel; however, the Department of 
Motor Vehicles will continue to impose restrictions from transporting 
passengers or hazardous materials on his CDL. Because the OMCS has 
determined that exempting Mr. Creel from the vision standard in 49 CFR 
391.41(b)(10) is likely to achieve a level of safety equal to that 
without the exemption, the agency does not believe it is necessary to 
impose this further restriction upon Mr. Creel or any of the 
applicants, for that matter. The OMCS sets the testing and licensing 
standards for commercial drivers; however, it is the State that 
implements these standards and issues the CDL. Therefore, the State, 
California in this case, has jurisdiction to set licensing restrictions 
for commercial operations.
    In another comment, the Advocates for Highway and Auto Safety 
(AHAS) expressed continued opposition to the FHWA'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 provided at 64 FR 54948, (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.
    On the first issue regarding clarification of exemption application 
information, the AHAS points to what it sees as ``inconsistencies and 
differences in the types of information'' provided in individual 
applications. The AHAS questions why the FHWA omitted information on 
mileage driven for 6 of the 40 applicants. This difference in the 
presentation of information simply reflects the OMCS' case-by-case 
assessments of individual applications. Total mileage driven was 
provided as an indicator of overall CMV experience. The omission of 
total mileage information for 6 of the 40 applicants is not significant 
since all 40 applicants have 3 years of experience operating a CMV with 
their vision deficiency in a period recent enough for the OMCS to 
verify their safety records.
    The AHAS identifies other apparent inconsistencies, such as the use 
of different terminology describing the driving records of applicants. 
As previously stated at 64 FR 66962, the use of different terminology 
simply reflects the agency's case-by-case assessments of individual 
applications as to whether there were any accidents or traffic 
violations in a CMV in the past 3 years. Regardless of how the agency 
states this information--that is, in a CMV, in any vehicle or no 
accidents or violations, it indicates that the applicant has not had an 
accident or traffic violation in a CMV in the last 3 years. The use of 
different terminology is not, as the AHAS continues to suggest, an 
attempt by the OMCS to manipulate information in such a way as to ``put 
the best possible appearance on each petition for exemption.''
    In another comment, the AHAS again suggests that the agency is 
``sanitizing'' the information in the driving record to justify 
granting vision exemptions. As previously stated at 64 FR 66962, 
specific information provided on accidents and traffic violations of 
the applicants is a presentation of the facts as we know them and not 
any attempt to downplay or explain away accidents and citations as the 
AHAS suggests.
    The AHAS also comments that ``the opinions of the ophthalmologists 
and especially optometrists, are not persuasive and should not be 
relied on by the agency.'' The opinions of the vision specialists on 
whether a driver has sufficient vision to perform the tasks associated 
with operating a CMV, are made only after a thorough vision examination 
including formal field of vision testing to identify any medical 
condition which may compromise the visual field such as glaucoma, 
stroke or brain tumor, and not just based on a Snellen test. The OMCS 
believes it can rely on medical opinions regarding whether a driver's 
visual capacity is sufficient to enable safe operations. The medical 
information is combined with information on experience and driving 
records in the agency's overall determination whether exempting 
applicants from the vision standard is likely to achieve a level of 
safety equal to that existing without the exemption.
    The other issues raised by the AHAS which object to the agency's 
reliance on conclusions drawn from the vision waiver program, raise 
procedural objections to this proceeding, claim the agency has 
misinterpreted statutory language on the granting of exemptions (49 
U.S.C. 31315 and 31136(e)), and finally, suggest that a recent Supreme 
Court decision affects the legal validity of vision exemptions, were 
addressed at length in 64 FR 51568 (September 23, 1999), 64 FR 66962 
(November 30, 1999) and 64 FR 69586 (December 13, 1999). We see no 
benefit in addressing these points again and refer interested parties 
to those earlier discussions for reasons why the points are rejected.
    Notwithstanding the OMCS' ongoing review of the vision standard, as 
evidenced by the medical panel's report dated October 16, 1998, and 
filed in this docket, the OMCS must comply with Rauenhorst v. United 
States Department of Transportation, Federal Highway Administration, 95 
F.3d 715 (8th Cir. 1996), and grant individual exemptions

[[Page 162]]

under standards that are consistent with public safety. Meeting those 
standards, the 40 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 40 exemption applications in accordance with 
Rauenhorst v. United States Department of Transportation, Federal 
Highway Administration, supra, the OMCS exempts Herman Bailey, Jr., 
Mark A. Baisden, Brad T. Braegger, Kenneth Eugene Bross, Erick H. 
Cotton, Fletcher E. Creel, Richard James Cummings, Daniel R. Franks, 
William L. Frigic, Curtis Nelson Fulbright, Victor Bradley Hawks, 
Vincent I. Johnson, Myles E. Lane, Sr., Dennis J. Lessard, Jon G. Lima, 
Richard L. Loeffelholz, Herman Carl Mash, Joseph M. Porter, Richard 
Rankin, Robert G. Rasicot, A.W. Schollett, Melvin B. Shumaker, Clark H. 
Sullivan, Wayland O. Timberlake, Norman R.Wilson, Larry M. Wink, 
Jeffrey G. Wuensch, Jon H. Wurtele, Walter M. Yohn, Jr., Steven H. 
Heidorn, James Donald Simon, William A. Bixler, Woodrow E. Bohley, 
George L. Silvia, Martin Postma, Steven L. Valley, Phillip P. Smith, 
Robert W. Nicks, Frank T. Miller, and Roger Allen Dennison 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 OMCS. 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 OMCS for a renewal under procedures in effect at that time.

    Authority: 49 U.S.C. 322, 31315 and 31136; 49 CFR 1.73.
Julie Anna Cirillo,
Acting Director, Office of Motor Carrier Safety.
[FR Doc. 99-34043 Filed 12-30-99; 8:45 am]
BILLING CODE 4910-22-P