[Federal Register: December 8, 2000 (Volume 65, Number 237)]
[Notices]
[Page 77066-77069]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08de00-112]
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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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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]
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