[Federal Register: April 5, 1999 (Volume 64, Number 64)]
[Notices]
[Page 16517-16520]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ap99-136]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration
[FHWA Docket No. FHWA-98-4334]


Qualification of Drivers; Exemption Applications; Vision

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of final disposition.

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SUMMARY: The FHWA announces its decision to exempt 23 individuals from
the vision requirement in 49 CFR 391.41(b)(10).

DATES: April 5, 1999.

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

    An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Federal Register
Electronic Bulletin Board Service at (202) 512-1661. Internet users may
reach the Federal Register's home page at: http://www.nara.gov/fedreg
and the Government Printing Office's database at: http://
www.access.gpo.gov/nara.

Background

    Twenty-four individuals petitioned the FHWA for a waiver 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 Gary
R. Andersen, Joe F. Arnold, Jack E. Atkinson, Gary A. Barrett, Ivan L.
Beal, Johnny A. Beutler, Richard D. Carlson, David John Collier, Tomie
L. Estes, Jay E. Finney, Britt D. Hazelwood, Jon R. Houston, Chad M.
Kallhoff, Loras G. Knebel, Rodney D. Lemburg, Dexter L. Myhre, James H.
Oppliger, Stephanie D. Randels, Duane L. Riendeau, Darrell Rohlfs,
Marvin L. Swillie, Larry Waldner, and Ronald Watt. The FHWA evaluated
the petitions on their merits, as required by the decision in
Rauenhorst v. United States Department of Transportation, Federal
Highway Administration, 95 F.3d 715 (8th Cir. 1996), and made a
preliminary determination that the waivers should be granted. On
December 1, 1998, the agency published notice of its preliminary
determination and requested comments from the public (63 FR 66226). The
comment period closed on December 31, 1998. One comment was received,
and its contents were carefully considered by the FHWA in reaching the
final decision to grant the petitions.
    The FHWA has not made a decision on one applicant, Mr. Jon R.
Houston of Iowa. Subsequent to the publication of the preliminary
determination, the agency received additional information from the Iowa
Department of Transportation, and we are evaluating that information. A
decision on Mr. Houston's petition will be made in the future.
    When the remaining 23 individuals filed their vision waiver
applications on various dates before June 9, 1998, the FHWA was
authorized by 49 U.S.C. 31136(e) to waive the vision standard if the
agency determined the waiver was consistent with the public interest
and the safe operation of CMVs. As the statute did not limit the
effective period of a waiver, the agency had discretion to issue
waivers for any period warranted by the circumstances of a request.
    On June 9, 1998, the FHWA's waiver authority changed with enactment
of the Transportation Equity Act for the 21st Century (TEA-21), Pub. L.
No. 105-178, 112 Stat. 107. Section 4007 of TEA-21 amended the waiver
provisions of 49 U.S.C. 31315 and 31136(e) to change the standard for
evaluating waiver requests, to distinguish between a waiver and an
exemption, and to establish term limits for both. Under revised
sections 31315 and 31136(e), the FHWA may grant a waiver for a period
of up to 3 months or an exemption for a renewable 2-year period. The 23
applications in this proceeding fall within the scope of an exemption
request under the revised statute.
    The amendments to 49 U.S.C. 31315 and 31136(e) also changed the
criteria for exempting a person from application of a regulation.
Previously an exemption was appropriate if it was consistent with the
public interest and the safe

[[Page 16518]]

operation of CMVs. Now the FHWA may grant an exemption if it finds
``such exemption would likely achieve a level of safety that is
equivalent to, or greater than, the level that would be achieved absent
such exemption.'' The new standard provides the FHWA greater
flexibility and discretion to deal with exemptions than the previous
standard. (See H.R. Conf. Rep. No. 105-550, at 489 (1998).)
    Although the 23 petitions in this proceeding were filed before
enactment of TEA-21, the FHWA is required to apply the law in effect at
the time of its decision unless (1) its application will result in a
manifest injustice or (2) the statute or legislative history directs
otherwise. Bradley v. School Board of the City of Richmond, 416 U.S.
696 (1974). With respect to the new standard, nothing in the statute,
its history, or the facts in this proceeding meets either of these two
tests. In fact, the new standard is more equitable as it allows an
exemption to be based on a reasonable expectation of equivalent safety,
rather than requiring an absolute determination that safety will not be
diminished. In addition, the ``public interest'' finding required under
the previous standard is not necessary under the new exemption
standard. These changes enhance the FHWA's discretion to consider
exemptions, thus benefitting the 23 applicants rather than causing an
injustice.
    For that reason, we applied the new standard in our evaluation of
these 23 petitions and determined that exempting these applicants from
the vision requirement in 49 CFR 391.41(b)(10) is likely to achieve a
level of safety equal to, or greater than, the level that would be
achieved without the exemption.

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 latest 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). The
panel's conclusion supports the FHWA's view that the present standard
is reasonable and necessary as a general standard to ensure highway
safety. The FHWA 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 23 applicants fall into this category. They are unable to meet
the vision standard in one eye for various reasons, including
amblyopia, retinal and corneal scars, and loss of an eye due to an
accident. In most cases, their eye conditions were not recently
developed. All but five applicants were either born with their vision
impairments or have had them since childhood. They have lived with them
for periods ranging from 16 to 46 years. The five individuals who
sustained their vision conditions as adults have had them for periods
ranging from 4 to 25 years.
    Although each applicant has one eye which does not meet the vision
standard in Section 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.
    While possessing a valid CDL, these 23 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 4 to 36 years.
In the past 3 years, the 23 drivers had a total of five moving
violations among them. Two drivers were involved in minor accidents in
their CMVs, but there were no injuries and neither person received a
citation.
    The qualifications, experience, and medical condition of each
applicant were stated and discussed in detail in 63 FR 66226, December
1, 1998. Since the lone docket comment did not focus on the
qualifications of a specific 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 in 63 FR
66226.

Basis for Exemption Determination

    Under revised 49 U.S.C. 31315 and 31136(e), the FHWA 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 applicants are likely to achieve an equal
or greater level of safety driving in interstate commerce as they have
achieved in intrastate commerce.
    To evaluate the effect of these exemptions on safety, the FHWA
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 monocular drivers in the program is better than
that of all CMV drivers collectively. (See 61 FR 13338, 13345, 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.
    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

[[Page 16519]]

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 23 applicants, we note that cumulatively the applicants have had
only two minor accidents and five traffic violations in the last 3
years. None of the violations represented a serious traffic violation
as defined in 49 CFR 383.5, and neither of the accidents involved
bodily injury or resulted in a citation. The applicants achieved this
record of safety while driving with their vision impairment,
demonstrating they have adapted their driving skills to accommodate
their condition. As the applicants' driving histories with their vision
deficiencies are predictors of future performance, the FHWA concludes
their ability to drive safely can be projected into the future.
    In addition, we believe applicants' intrastate driving experience
provides an adequate basis for evaluating their ability to drive safely
in interstate commerce. Intrastate driving, like interstate operations,
involves substantial driving on highways in the interstate system and
on other roads built to interstate standards. Moreover, driving in
congested urban areas exposes the driver to more pedestrians and
vehicle 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 a CMV safely under
those conditions for at least 4 years, most for much longer. Their
experience and driving records lead us to believe the applicants are
capable of operating in interstate commerce as safely as they have in
intrastate commerce. Consequently, the FHWA 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 FHWA will impose
requirements on the 23 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 Comment

    The FHWA received one comment in this proceeding. In that comment,
J.B. Hunt Transport, Inc. (Hunt) expresses general opposition to
exemptions from the physical qualification standards and raises
procedural objections to this proceeding.
    On the procedural issue, Hunt maintains that the applicants should
reapply under the standards which will be adopted in Docket No. FHWA-
98-4145, Federal Motor Carrier Safety Regulations; Waivers, Exemptions,
and Pilot Programs; Rules and Procedures, 63 FR 67600, December 8,
1998, to implement the TEA-21 changes to the agency's exemption
authority. It asserts that the agency is disregarding the rulemaking
process by considering vision waiver requests filed after the waiver
program was closed and before rules are fully adopted to implement the
new provisions of 49 U.S.C. 31315 and 31136(e).
    Section 4007 of TEA-21 requires the Secretary of Transportation to
promulgate regulations specifying the procedures by which a person may
request an exemption. The statute lists four items of information an
applicant must submit with an exemption petition and gives the
Secretary 180 days (from June 9, 1998) to implement the new procedural
regulations. On December 8, 1998, the agency published interim final
rules in Docket No. FHWA-98-4145 to implement section 4007. The interim
rules will govern exemption requests filed on or after June 9, 1998,
until final rules are adopted in that proceeding.
    Before publishing its notice of intent to grant these applications,
the FHWA determined that applying the new procedural requirements of
section 4007 of TEA-21 would adversely affect the applicants. As we
explained in 63 FR 66226, December 1, 1998, it would have been
manifestly unjust to hold applications filed before June 9, 1998, in
abeyance until new procedural regulations were implemented in December,
and then require the applicants to submit conforming, supplementary
information to support their exemption request. Such delay not only
would have been unjust but would have provided nothing to enhance
safety. For these reasons, the FHWA decided not to apply the procedural
requirements of section 4007 to exemption requests filed before its
effective date, June 9, 1998. As these applications were filed before
that date, we processed them under procedures in effect at the time
they were filed, a decision supported by Bradley v. School Board of the
City of Richmond, 416 U.S. 696 (1974).
    The balance of Hunt's comments relate to its opposition to
exemptions for drivers who cannot meet the existing medical standards.
First, Hunt asserts that ``minimum safety standards'' should apply to
every CMV driver in interstate commerce without the possibility of
waiver or exemption. If the vision standard in 49 CFR 391.41(b)(10) is
the appropriate minimum standard, Hunt urges, it should be applied
without exception. If it is not, the standard should be reviewed in
accordance with several guidelines suggested by Hunt in its comments.
    The FHWA continues to review the vision standard in 49 CFR
391.41(b)(10), as evidenced by the medical panel's report dated October
16, 1998, filed in this docket, and we welcome Hunt's suggested
guidelines to factor into our review process. Notwithstanding the

[[Page 16520]]

ongoing review of the vision standard, however, the FHWA 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 23 veteran drivers in this case
have demonstrated to our satisfaction that they can operate a CMV with
their current vision as safely in interstate commerce as they have in
intrastate commerce. Accordingly, they qualify for an exemption under
49 U.S.C. 31315 and 31136(e).
    Hunt also asserts that motor carriers should be given regulatory
relief which would allow them to maintain the more stringent vision
standard found in 49 CFR 391.41(b)(10) and the right to legally decline
the use of a driver with an exemption. Absent that relief, Hunt urges
that motor carriers ``forced to use a waived or exempted driver''
should receive a hold harmless agreement from the FHWA relieving them
of liability in case a medically exempted driver has a traffic
accident.
    The FHWA's physical qualification standards are minimum
requirements; thus, carriers already have the right to maintain
standards that meet or exceed those established by the agency (49 CFR
390.3(d)). When motor carriers apply higher physical standards than
required by the FHWA, however, they must be prepared to justify their
requirements if challenged under the Americans with Disabilities Act,
Pub.L. 101-336, 104 Stat. 327, or any other law. In short, a motor
carrier has a legal obligation not to discriminate on the basis of a
disability, and the FHWA cannot relieve a carrier of that obligation.

Conclusion

    After considering the comment to the docket and based upon its
evaluation of the 23 waiver applications in accordance with Rauenhorst
v. United States Department of Transportation, Federal Highway
Administration, supra, the FHWA exempts Gary R. Andersen, Joe F.
Arnold, Jack E. Atkinson, Gary A. Barrett, Ivan L. Beal, Johnny A.
Beutler, Richard D. Carlson, David John Collier, Tomie L. Estes, Jay E.
Finney, Britt D. Hazelwood, Jerome R. Jessen, Chad M. Kallhoff, Loras
G. Knebel, Rodney D. Lemburg, Dexter L. Myhre, James H. Oppliger,
Stephanie D. Randels, Duane L. Riendeau, Darrell Rohlfs, Marvin L.
Swillie, Larry Waldner, and Ronald Watt 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 revised 49 U.S.C. 31315 and 31136(e), each
exemption will be valid for 2 years unless revoked earlier by the FHWA.
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 FHWA for a renewal under procedures in effect
at that time.

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

    Issued on: March 29, 1999.
Kenneth R. Wykle,
Federal Highway Administrator.
[FR Doc. 99-8196 Filed 4-2-99; 8:45 am]
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