[Federal Register: March 7, 2001 (Volume 66, Number 45)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2000-7918]
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, (202) 366-2987; for information about
legal issues related to this notice, Ms. Elaine Walls, Office of the
Chief Counsel, (202) 366-1394; 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
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.
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
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 28\1/2\ 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
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 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 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.
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
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-
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
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
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
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
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
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
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
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).
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.
[FR Doc. 01-5480 Filed 3-6-01; 8:45 am]
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