[Federal Register: May 18, 1999 (Volume 64, Number 95)]
[Notices]
[Page 27025-27027]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18my99-131]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration
[FHWA DOCKET NO. FHWA-99-5473]


Qualification of Drivers; Exemption Application; Vision

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of petition and intent to grant application for
exemption; request for comments.

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SUMMARY: This notice announces the FHWA's preliminary determination to
grant the application of James F. Durham for an exemption from the
vision requirements in the Federal Motor Carrier Safety Regulations
(FMCSR). Granting the exemption will enable Mr. Durham to qualify as a
driver of commercial motor vehicles (CMVs) in interstate commerce
without meeting the vision standard prescribed in 49 CFR 391.41(b)(10).

DATES: Comments must be received on or before June 17, 1999.

ADDRESSES: Your written, signed comments must refer to the docket
number at the top of this document, and you must submit the comments to
the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street,
SW., Washington, DC 20590-0001. All comments will be available for
examination at the above address between 9 a.m. and 5 p.m., e.t.,
Monday through Friday, except Federal holidays. Those desiring
notification of receipt of comments must include a self-addressed,
stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: For information about the vision
exemption in this notice, Ms. Sandra Zywokarte, Office of Motor Carrier
Research and Standards, (202) 366-2987; for information about the legal
issues related to this notice, Ms. Judith Rutledge, Office of the Chief
Counsel, (202) 366-0834, Federal Highway Administration, Department of
Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office
hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday,
except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users can access all comments received by the U.S. DOT
Dockets, Room PL-401, by using the universal resource locator (URL):
http://dms.dot.gov. It is available 24 hours each day, 365 days each
year. Please follow the instructions online for more information and
help.
    An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Government Printing
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet
users may reach the 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

    On July 18, 1997, Mr. Durham applied for a waiver of the vision
requirement in 49 CFR 391.41(b)(10), which applies to drivers of CMVs
in interstate commerce. The FHWA denied his application on September
11, 1998, because Mr. Durham did not have three years of recent
experience driving with his vision deficiency. He appealed the agency's
decision to the United States Court of Appeals for the Sixth Circuit on
November 6, 1998. (Case No. 98-4331, James F. Durham, Jerry W. Parker
v. United States Department of Transportation, Federal Highway
Administration, and the United States of America). The FHWA and Mr.
Durham have agreed to settle the case without further litigation. In
accordance with that agreement, the FHWA has reconsidered Mr. Durham's
waiver application and determined that it should be granted for the
reasons discussed in this notice.
    When Mr. Durham's application was filed on July 18, 1997, the FHWA
was authorized by 49 U.S.C. 31136(e) to waive application of the vision
standard if the agency determined the waiver was consistent with the
public interest and the safe operation of CMVs. Because 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), Public Law 105-178, 112 Stat.107 (1998). 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.
Mr. Durham's application falls 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 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.'' According to the legislative
history, Congress changed the statutory standard to give the agency
greater discretion to consider exemptions. The previous standard was
judicially construed as requiring an advance determination that
absolutely no reduction in safety would result from an exemption.
Congress revised the standard to require that an ``equivalent'' level
of safety be achieved by the exemption, which would allow for more
equitable resolution of such matters, while ensuring safety standards
are maintained. (See H.R. Conf. Rep. No. 105-550, at 489 (1998)).
    Although Mr. Durham's application was 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

[[Page 27026]]

Richmond, 416 U.S. 696 (1974). Insofar as the new standard is
concerned, 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 Mr. Durham
rather than causing an injustice.
    Although applying TEA-21's new exemption standard does not
adversely affect Mr. Durham, subjecting his application to the new
procedural requirements would unfairly affect him. Section 4007
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 to
implement the new procedural regulations. In accordance with that
requirement, the FHWA published interim final rules 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, establishing procedures for requesting an exemption under Section
4007. As the new procedures differ from those in effect when Mr. Durham
filed his exemption request, it would be manifestly unjust to further
delay resolution of Mr. Durham's application by requiring him to submit
information that conforms to the new procedures. To avoid this delay
and injustice, we will not apply the new procedural requirements of
section 4007 to Mr. Durham's exemption petition.
    Accordingly, the FHWA has evaluated Mr. Durham's exemption request
on its merits, as required by the decision in Rauenhorst v. United
States Department of Transportation, Federal Highway Administration, 95
F.3d 715 (8th Cir. 1996), applying the new exemption standard in 49
U.S.C. 31315 and 31136(e). Based on our evaluation, we have determined
that exempting him 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.

Qualifications of Mr. Durham

    Mr. Durham is 49 years old and has driven CMVs in various
capacities since 1971. From 1974 to 1989, he worked for Yellow Freight
System, Inc., in its maintenance department, driving and maintaining
company equipment. He became a full-time driver for the carrier in July
1989 and drove approximately 520 miles per week in the Middle Tennessee
area until April 1996. At that time, the carrier disqualified him from
driving because his vision did not meet the standard in 49 CFR
391.41(b)(10) and he lacked a waiver of the vision requirement.
    Mr. Durham's vision deficiency was caused by a penetrating trauma
to the right eye in 1992. Corneal scarring, aphakia, and retinal
scarring resulted from the injury and has reduced vision in his right
eye to finger counting. The uncorrected vision in his left eye measures
20/15, well within regulation standards. According to his doctor, Mr.
Durham has variable eye pressure changes in his right eye, but
otherwise vision is stable in both eyes. The doctor attests that Mr.
Durham is capable of performing tasks related to driving a CMV
notwithstanding the limited vision in his right eye.
    Following his injury in 1992, Mr. Durham continued to drive for
Yellow Freight and was presented a ``Safe Driver Award'' in 1994
recognizing 13 years of safe driving with the company. After four years
of driving with his limited vision, he was disqualified as a driver by
the carrier in April 1996 for failing to meet the Federal vision
standard. He applied for a waiver in July 1997 and drove part-time for
TravelCenters of America from October 1997 until July 1998. At that
time, Mr. Durham stopped driving and returned to Yellow Freight where
he presently works on the loading docks.
    Mr. Durham's driving record since 1994 contains no traffic
violations. He was involved in a CMV accident in 1995 that caused
property damage but no bodily injury. The accident was judged non-
preventable.

Analysis of Mr. Durham's Qualifications

    The Rauenhorst decision requires the FHWA to evaluate Mr. Durham's
application under criteria applied in the vision waiver program. Among
other things, that criteria required drivers to have at least 3 years
of experience driving a CMV with their vision deficiency and a safe
driving record, as reflected by State records, for the 3 years
preceding the waiver application. In fact, one basis for adopting the
3-year requirement was that it corresponds to the period of time for
which driver records are maintained by the States. (59 FR 50887,
October 6, 1994.)
    Mr. Durham drove a CMV with his vision deficiency from 1992 until
April 1996, approximately 4 years. He did not drive for 18-months
between April 1996 and October 1997, but resumed driving part-time from
October 1997 until July 1998. Thus, Mr. Durham has approximately 5
years of experience driving with his vision deficiency overall (1992-
April 1996; October 1997-July 1998).
    The FHWA previously denied Mr. Durham an exemption due to the 15-
month gap in his driving experience during the 3 years immediately
preceding his application (April 1996-July 1997). In our decision, we
concluded that Mr. Durham's driving experience was too remote to
reflect his current ability to drive safely, as driving records are not
readily available beyond 3 years. Further, physical conditions change
over time, and current driving ability with the vision deficiency may
not be reflected in driving experience from 4 or 5 years ago. Thus, we
declined to accept Mr. Durham's remote experience as a basis for
projecting future ability to drive safely.
    We have reconsidered our analysis of Mr. Durham's application and
experience, however, and concluded that unique circumstances related to
his case enable us to accept his past driving experience as evidence of
his ability to drive safely in the future. First, we do have a copy of
Mr. Durham's driving record from 1994 through January 28, 1999,
reflecting a safe driving record over a 5 year period rather than a 3
year period. As the record reflects no traffic violations and only one
accident in a CMV (judged non-preventable) during that 5 year period,
it supports the conclusion that Mr. Durham is able to drive safely with
his vision deficiency.
    Next, Mr. Durham's driving record shows that the gap in his driving
experience did not affect his ability to drive safely. Following his
18-month driving break between April 1996 and October 1997, Mr. Durham
drove for 10 months without having an accident or committing a traffic
violation. That record demonstrates he still has the ability to adapt
his driving skills to accommodate his limited vision, just as he had
before the break in experience.
    Finally, medical statements from 1997 and 1998 indicate Mr.
Durham's vision is stable. As he has driven without an accident or
traffic violation since October 1997, we think he has demonstrated that
his physical ability to

[[Page 27027]]

drive safely now is equivalent to his ability 4 to 5 years ago.
    Based upon these factors, the FHWA has determined that Mr. Durham
has more than three years of creditable safe-driving experience with
his vision deficiency to satisfy the Rauenhorst criteria and qualify
for a vision exemption.

Basis for Preliminary Determination to Grant Exemption

    Independent studies support the principle that past driving
performance is a reliable indicator of an individual's future safety
record. The studies are filed in FHWA Docket No. FHWA-97-2625 and
discussed at 63 FR 1524, 1525 (January 9, 1998). We believe we can
properly apply the principle to monocular drivers because data from the
vision waiver program clearly demonstrates the driving performance of
monocular drivers in the program is better than that of all CMV drivers
collectively. (See 61 FR 13338, 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.
    Mr. Durham has qualifications similar to those possessed by drivers
in the waiver program. His experience and safe driving record operating
CMVs demonstrate that he has adapted his driving skills to accommodate
his vision deficiency. For that reason, the FHWA believes exempting him
from 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 as long as vision in his better eye continues to meet the
standard specified in 49 CFR 391.41(b)(10). As a condition of the
exemption, therefore, the FHWA proposes to impose requirements on Mr.
Durham similar to the grandfathering provisions in 49 CFR 391.64(b)
applied to drivers who participated in the agency's former vision
waiver program.
    These requirements are (1) that he be physically examined every
year (a) by an ophthalmologist or optometrist who attests that vision
in his better eye meets the standard in 49 CFR 391.41(b)(10), and (b)
by a medical examiner who attests he is otherwise physically qualified
under 49 CFR 391.41; (2) that he 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 he provide a
copy of the annual medical certification to his employer for retention
in its driver qualification file or keep a copy in his driver
qualification file if he becomes self-employed. He must also have a
copy of the certification when driving to present to a duly authorized
Federal, State, or local enforcement official.
    In accordance with revised 49 U.S.C. 31315 and 31136(e), the
proposed exemption will be valid for 2 years unless revoked earlier by
the FHWA. The exemption will be revoked if: (1) Mr. Durham fails to
comply with the terms and conditions of the exemption; (2) the
exemption results 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(e). If the exemption is effective at the end of the 2-year
period, Mr. Durham may apply to the FHWA for a renewal under procedures
in effect at that time.

Request for Comments

    In accordance with 49 U.S.C. 31315 and 31136(e), the FHWA is
requesting public comment from all interested parties on the exemption
petition and the matters discussed in this notice. All comments
received before the close of business on the closing date indicated
above will be considered and will be available for examination in the
docket room at the above address. Comments received after the closing
date will be filed in the docket and will be considered to the extent
practicable, but the FHWA may issue an exemption to Mr. Durham and
publish in the Federal Register a notice of final determination at any
time after the close of the comment period. In addition to late
comments, the FHWA will also continue to file in the docket relevant
information which becomes available after the closing date. Interested
persons should continue to examine the docket for new material.
    A copy of this notice will be mailed to compliance and enforcement
personnel in the State of Tennessee, in accordance with 49 U.S.C.
31315(b)(7) and 31136(e), and we welcome comments from State officials.

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

    Issued on: May 12, 1999.
Kenneth R. Wykle,
Federal Highway Administrator.
[FR Doc. 99-12464 Filed 5-17-99; 8:45 am]
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