01-5480. Qualification of Drivers; Exemption Applications; Vision

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of final disposition.

SUMMARY:

The FMCSA announces its decision to exempt 55 individuals from the vision requirement in 49 CFR 391.41(b)(10).

DATES:

Effective March 7, 2001.

FOR FURTHER INFORMATION CONTACT:

For information about the vision exemptions in this notice, Ms. Sandra Zywokarte, Office of Bus and Truck Standards and Operations, [phone]; for information about legal issues related to this notice, Ms. Elaine Walls, Office of the Chief Counsel, [phone]; 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

Sixty-five individuals petitioned the Federal Motor Carrier Safety Administration (FMCSA) for an exemption from 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 Ammons Jr., Wayne A. Anderson, Glenn A. Babcock Jr., Bobby J. Beall, Robert D. Bonner, James F. Bower, Ben T. Brown, Terry L. Burgess, William A. Burgoyne, David S. Carman, Dennis J. Christensen, David L. Davis, Darrell B. Dean, Don W. Dotson, Terrance D. Faust, Edgar E. French, Glen T. Garrabrant, Doyle G. Gibson, Elias Gomez Jr., Jose E. Gonzalez, Anthony Grant, Joseph M. Graveline, Johnny C. Hall, William N. Hicks, Robert K. Hodge, William G. Holland, John R. Hughes, Frank Inigarida, Alan L. Johnston, David O. Kaiser Sr., Milena Kekerovic, Mark J. Koscinski, John N. Lanning, Robert C. Leathers, Richard L. Leonard, Calvin E. Lloyd, Roy E. Mathews, Jason B. Mazyck, William F. McCandless Jr., James T. McGraw Jr., Luther A. McKinney, Jose L. Melendez, Carl A. Michel Sr., Clarence M. Miles Jr., Robert A. Moss, Robert A. Murphy, Dennis I. Nelson, Martin D. Ortiz, John J. Partenio, Henry C. Patton, Rance A. Powell, John W. Purcell, Shannon E. Rasmussen, Merlyn L. Rawson, Thomas G. Raymond, James R. Rieck, Daniel J. Schaap, Dennis J. Smith, Garfield A. Smith, Gary L. Spelce, Frederick E. St. John, Daniel R. Viscaya, Michael P. Walsh, Jerry L. Whitefield, and Robert E. Wientjes.

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 has evaluated the 65 petitions on their merits and made a determination to grant the exemption requests in 55 of them. On November 3, 2000, the agency published notice of its receipt of applications from these 65 individuals, and requested comments from the public (65 FR 66286). After the agency published its notice of receipt of application, Mr. Mazyck indicated in a conversation with a member of our staff on November 30, 2000, that he had driven a CMV only part of the required 3-year period. The comment period closed on December 4, 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 Jason B. Mazyck, the FMCSA has denied Mr. Mazyck's request for an exemption from the vision requirements of 49 CFR 391.41(b)(10) because he operated a CMV for only 281/2 months of the 3-year review period preceding the date of his application. Thus, we are 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). By letter dated December 11, 2000, Mr. Mazyck was notified of his denial.

In the case of applicant Wayne A. Anderson, the FMCSA has denied Mr. Anderson's request for an exemption from the vision requirements because the medical reciprocity agreement between the United States and Canada does not permit drivers who do not meet the medical provisions in the National Safety Code of Canada to drive CMVs in the United States, even if they have a waiver issued by one of the Canadian provinces or territories. For additional information on the medical reciprocity agreement between the United States and Canada, see docket, FMCSA-2000-7918. The purpose of publishing their denials 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.

The FMCSA has not made a decision on eight applicants (William A. Burgoyne, Don W. Dotson, Terrance D. Faust, Anthony Grant, William F. McCandless, Jr., Jose L. Melendez, John J. Partenio, and Thomas G. Raymond). Subsequent to the publication of the notice of application, the agency received additional information from its ongoing checks of these applicants' motor vehicle records, and we are evaluating that information. A decision on these eight petitions will be made in the future.

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° 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 Federal Highway Administration (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° to 120°, 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.

Fifty-five of the 65 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 15 of the 55 applicants were either born with their vision impairments or have had them since childhood. The 15 individuals who sustained their vision conditions as adults have had them for periods ranging from 6 to 30 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, has sufficient vision to perform all the tasks necessary to operate a CMV. The doctors' opinions are supported by the applicants' possession of valid commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before issuing CDLs, States subject drivers to knowledge and performance tests designed to evaluate their qualifications to operate a 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 55 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 46 years. In the past 3 years, the 55 drivers had 9 convictions for traffic violations among them. Six of these convictions were for speeding. The other convictions consisted of: “Failure to obey directional signal,” “Failure to yield right-of-way,” and “Failure to obey a sign/traffic control device.” Five drivers were involved in accidents in their CMVs, but did not receive a citation. One driver was suspended for failure to maintain required liability insurance, but the State set aside (canceled) the action after his insurance company sent proof that he had maintained his insurance.

The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in a November 3, 2000, notice (65 FR 66286). Except for one applicant (Jason B. Mazyck), the docket comments did not focus on the specific merits or qualifications of any applicant; therefore, we have not repeated the individual profiles here. The qualifications of Mr. Mazyck are further examined below in the discussion of comments. Our summary analysis of the applicants as a group, excluding Mr. Mazyck, is supported by the information published at 65 FR 66286.

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. To be considered for an exemption from the vision standard, the FMCSA requires a person to present verifiable evidence that he or she has driven a commercial vehicle safely with the vision deficiency for 3 years. 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.) The fact 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 55 applicants receiving an exemption, we note that cumulatively the applicants have had only 6 accidents and 9 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 concludes their ability to drive safely can be projected into the future.

We believe 55 of the 65 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 exists 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 55 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 for the exemption, therefore, the FMCSA will impose requirements on the 55 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, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when 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.

Mr. Eugene Scalia, Esq., of Gibson, Dunn & Crutcher LLP, submitted a comment on behalf of United Parcel Service, Inc. (UPS), regarding the application of Mr. Jason B. Mazyck. Mr. Scalia stated that: (1) Mr. Mazyck does not meet the three-year requirement required to qualify for a vision exemption, since he drove only two years and four months during the three-year period preceding his date of application; (2) Mr. Mazyck had not driven for a three-week period during the two years and four months he was driving for the company, and he often worked substantially fewer than 40 hours a week; and (3) Mr. Mazyck's representation that he had been driving a straight truck for approximately four years was derived from his occasional driving as a substitute driver prior to the date he became a package car driver.

The comment from UPS provided no new information bearing on the decision to deny Mr. Mazyck's application. Mr. Mazyck himself had previously reported to the FMCSA, on November 30, 2000, that he had not driven the full three-year period; and the FMCSA has decided to deny his application because he does not have sufficient driving experience over the past three years under normal highway operating conditions that would serve as an adequate predictor of future safe performance. The number of hours he drove per week was not an issue, but to set the record straight, Mr. Mazyck had submitted a letter from UPS with his application, stating, “Our records indicate that you averaged 44.40 hours per week operating commercial vehicles with a gross vehicle weight rating (GVWR) over 10,001 pounds, on public roads.”

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) Objects to the manner of presentation of exemption application information and safety analyses, (2) objects to the agency's reliance on conclusions drawn from the vision waiver program, (3) raises procedural objections to past proceedings, (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 here, but refer interested parties to those earlier discussions. However, the AHAS has raised some new issues, and these are addressed in the following discussion.

The AHAS stated that the FMCSA should consider imposing a sliding scale standard for drivers with little driving experience, holding applicants with relatively low accumulations of mileage and years of experience to a higher safety standard during the three-year review period. The AHAS based this view on two factors: (1) Exposure is frequently used as a means of determining safety, as when the FMCSA uses the fatality rate as a measure of safety progress in truck-related crashes; and (2) greater driving experience would mean the drivers have had more time to adjust to driving with their vision deficiencies.

The AHAS uses this same line of reasoning to argue that there should be a minimum mileage requirement. This issue was addressed in a previous notice (65 FR 57233, September 21, 2000), where the FMCSA stated, “Defining a required minimum mileage for application would enact a spurious screening standard.” This statement is based on data taken from the Vision Waiver Program which was shown to have an acceptable level of safety. There, the annual mileage ranged from as little as 1,000 miles to a maximum of 160,000, with 25 percent of the waiver holders driving less than 17,000 miles per year.

The agency also indicated that the accident rate (the number of accidents per some convenient unit of miles driven; for example, per one million miles) of an exempted group is the basis for determining the safety level of a program. Miles driven are an integral part of the safety determination, but not the only part. Miles driven are included with the number of accidents in a statistical model (Poisson regression) to develop an accident rate. Such a framework does not require a minimum amount of mileage for the determination of safety, nor does it suggest that there should be a minimum number of miles that could arbitrarily be used for screening purposes. Rather, the agency's screening criteria require that there is a consistent and ongoing exposure to public roads during the 3-year period as an aspect of employment.

In the earlier notice (65 FR 57233), the FMCSA pointed out that a 3-year screening period for driving records was sufficient to insure an acceptable level of safety. In John C. Anderson v. Federal Highway Administration, No. 98-3739 (8th Cir. May 1, 2000), the United States Court of Appeals for the Eighth Circuit recently affirmed the agency's 3-year requirement of driving with a vision impairment before being eligible for an exemption. This screening period was used in the Vision Waiver Program which was shown to have a level of safety that was better than the national norm. Moreover, as the AHAS has pointed out, not all States maintain records for more than 3 years. Thus, requiring some drivers to submit 3-year records and others to submit one for longer periods would impose requirements that are clearly arbitrary and capricious.

The AHAS objects to the FMCSA's past practice of making preliminary determinations to grant vision exemptions prior to the issuance of notice and receipt of comments, while expressing hopefulness that the agency's current notice announcing the receipt of applications for a vision exemption, signals a change in agency procedure indicative of “a new spirit of objective evaluation.”

We believe, as previously stated at 64 FR 51568 and 64 FR 66962, that the agency's preliminary determinations to grant vision exemptions are analogous to a notice of proposed rulemaking, where the agency evaluates the basis for new or amended regulation and then proposes the new rule. Whether the FMCSA issues a preliminary determination or notice of application, a final determination to grant an exemption is made following careful consideration of all available information, and only after notice and comment. Our preliminary determinations are not “based entirely on self-reported information,” as asserted by the AHAS. As previously stated at 65 FR 57234, the information used to determine an applicant's acceptability for an exemption is verified by sources other than the applicant. The 3 years of recent experience prior to application and type of vehicle driven are verified by the applicant's employer(s). The visual capacity of applicants is verified by his/her ophthalmologist or optometrist. The applicant's most recent 3-year driving record is verified through the Commercial Driver License Information System (CDLIS). The CDLIS is checked at the time of initial application and then periodically throughout the application process. When the agency receives additional information from its ongoing checks of applicants' motor vehicle records, this information is thoroughly considered and the determination to grant, or not grant, an exemption is based on all information received.

In a supplemental comment to the docket, the AHAS states additional concerns regarding agency reliance on self-reported information. We will not address these concerns again, but refer interested parties to the above discussions regarding Mr. Mazyck's application for an exemption and the agency's process for verification of information used to determine an applicant's acceptability for an exemption.

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 this docket, 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 55 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 55 exemption applications in accordance with the Rauenhorst decision, the FMCSA exempts Henry Ammons Jr., Glenn A. Babcock Jr., Bobby J. Beall, Robert D. Bonner, James F. Bower, Ben T. Brown, Terry L. Burgess, David S. Carman, Dennis J. Christensen, David L. Davis, Darrell B. Dean, Edgar E. French, Glen T. Garrabrant, Doyle G. Gibson, Elias Gomez Jr., Jose E. Gonzalez, Joseph M. Graveline, Johnny C. Hall, William N. Hicks, Robert K. Hodge, William G. Holland, John R. Hughes, Frank Inigarida, Alan L. Johnston, David O. Kaiser Sr., Milena Kekerovic, Mark J. Koscinski, John N. Lanning, Robert C. Leathers, Richard L. Leonard, Calvin E. Lloyd, Roy E. Mathews, James T. McGraw Jr., Luther A. McKinney, Carl A. Michel Sr., Clarence M. Miles Jr., Robert A. Moss, Robert A. Murphy, Dennis I. Nelson, Martin D. Ortiz, Henry C. Patton, Rance A. Powell, John W. Purcell, Shannon E. Rasmussen, Merlyn L. Rawson, James R. Rieck, Daniel J. Schaap, Dennis J. Smith, Garfield A. Smith, Gary L. Spelce, Frederick E. St. John, Daniel R. Viscaya, Michael P. Walsh, Jerry L. Whitefield, and Robert E. Wientjes 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 the driver's qualification file, or keep a copy in his/her driver's 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: February 28, 2001.

Stephen E. Barber,

Acting Assistant Administrator and Chief Safety Officer.