37 TAC §§16.8, 16.9, 16.14
The Texas Department of Public Safety adopts new §16.9
and amendments to §16.8 and §16.14, concerning Licensing Requirements,
Qualifications, Restrictions, and Endorsements, with changes to the proposed
text as published in the August 16, 2002, issue of the
Texas Register
(27 TexReg 7369). The text of the rules will be republished.
New §16.9 adds language providing for a vision and limb intrastate
waiver program for Texas that is consistent with federal standards and guidelines.
Amendment to §16.8 adds a note referring applicants not meeting required
physical requirements for interstate commercial driver license operations
to §16.14 for waiver requirements for interstate operation.
Amendment to §16.14 changes the title of the section.
Written comments were received by the department through September 16,
2002 from the following individual: Chris Carthel, BWXT Pantex.
The substantive comments as well as the department's responses thereto,
are summarized below:
COMMENT: The department was not consistent in the use of federal terminology
when referring to interstate vision exemptions and limb skill performance
evaluation certificates.
RESPONSE: In §16.8(c) we find that we were not consistent in the use
of terminology and have made the appropriate changes.
COMMENT: The usage of the term "waiver" concerning the intrastate vision
program is misleading and inconsistent with the federal terms.
RESPONSE: The department's vision and limb programs are modeled following
the federal physical requirements. The department continues to use the term
waiver in an effort to distinguish the federal and state programs from each
other. We feel that this will assist enforcement personnel in determining
which program the CDL holder has been granted authority to operate. No changes
were made as a result of this comment.
COMMENT: The Federal Motor Carrier Safety Administration published a final
rule on July 31, 2002 which revised the disqualification sanctions found in
49 CFR 383.5 and 383.51.
RESPONSE: At the time these rule changes were proposed, the new federal
regulations had not been posted. At this time the department does not have
statutory authority to include the new disqualification actions regarding
these offenses when operating a non-CMV. Due to the lack of statutory authority
to implement all portions of the new federal regulations, the department has
determined that the corresponding Transportation Code should be the appropriate
cite. Also, by citing the Transportation Code, this rule will not require
amendment when statutory authority is received for the new disqualification
actions. No changes were made as a result of this comment.
COMMENT: The department uses the term "conviction" when the federal regulation
uses "violation".
RESPONSE: The department does not have statutory authority to act on a
violation until it has been adjudicated as a conviction. No changes were made
as a result of this comment.
COMMENT: Inclusion of the word "waiver" in the title for §16.14 is
inconsistent with the section's discussion of federal SPE certificates.
RESPONSE: The department agrees with this recommendation and has made that
change.
The amendments and new section are adopted pursuant to Texas
Government Code, §411.004(3), which authorizes the Public Safety Commission
to adopt rules considered necessary for carrying out the department's work
and Texas Transportation Code, §522.005.
§16.8.Qualifications To Drive in Interstate Commerce.
(a)
Interstate commerce is transportation of persons or property
(a commodity) which crosses state or international boundaries. The bill of
lading will be an indicator as to whether a shipment or commodity is interstate
or intrastate. If there is no bill of lading, the origin and destination of
the shipment will be an indicator.
(b)
A person applying for a commercial driver's license (CDL)
which authorizes operation of a commercial motor vehicle (CMV) in interstate
commerce, must meet the following requirements.
(1)
The applicant must be domiciled in Texas. For purposes
of this requirement, the state of domicile means the state where a person
has the person's true, fixed, and permanent home and principal residence and
to which the person intends to return whenever absent. A person may have only
one state of domicile.
(2)
The applicant must be at least 21 years of age.
(3)
The applicant must read and speak the English language.
For purposes of this requirement, a person who has the ability in English
to communicate to department personnel the need for a CDL will have complied.
(4)
The applicant must meet the federal vision requirements
set out in 49 Code of Federal Regulations, Part 391.41 or have been issued
an exemption. Note: Vision waivers issued by the department are valid for
intrastate operation only as stated in §16.9 of this title (relating
to Qualifications to Drive in Intrastate Commerce).
(5)
The applicant must meet the federal physical requirements
set out in 49 Code of Federal Regulations, Part 391.41.The applicant must:
(A)
have no loss of a foot, a leg, a hand, or an arm, or have
been granted a Skill Performance Evaluation certificate (Note: Limb waivers
issued by the department are valid for intrastate operation only as stated
in §16.9 of this title (relating to Qualifications To Drive in Intrastate
Commerce);
(B)
have no impairment of hand or finger which interferes with
prehension or power grasping, or impairment of an arm, foot, or leg which
interferes with the ability to perform normal tasks associated with operating
a motor vehicle, or any other significant limb defect or limitation which
interferes with the ability to perform normal tasks associated with operating
a motor vehicle, or have been granted a Skill Performance Evaluation certificate
(Note: Limb waivers issued by the department are valid for intrastate operation
only as stated in §16.9 of this title (relating to Qualifications To
Drive in Intrastate Commerce);
(C)
have no established medical history or clinical diagnosis
of diabetes mellitus currently requiring insulin for control;
(D)
have no current clinical diagnosis of myocardial infarction,
angina pectoris, coronary insufficiency, thrombosis, or any other cardiovascular
disease of a variety known to be accompanied by syncope, dyspnea, collapse,
or congestive cardiac failure;
(E)
have no established medical history or clinical diagnosis
of a respiratory dysfunction likely to interfere with the ability to control
and drive a motor vehicle safely;
(F)
have no current clinical diagnosis of high blood pressure
likely to interfere with the ability to operate a motor vehicle safely;
(G)
have no established medical history or clinical diagnosis
of pneumatic, arthritic, orthopedic, muscular, neuromuscular, or vascular
disease which interferes with the ability to control and operate a motor vehicle
safely;
(H)
have no established medical history or clinical diagnosis
of epilepsy or any other condition which is likely to cause loss of consciousness
or any loss of ability to control a motor vehicle;
(I)
have no mental, nervous, organic, or functional disease
or psychiatric disorder likely to interfere with the ability to drive a motor
vehicle safely;
(J)
first perceive a forced whispered voice in the better ear
at not less than five feet with or without the use of a hearing aid or, if
tested by use of an audiometric device, do not have an average hearing loss
in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000
Hz with or without a hearing aid when the audiometric device is calibrated
to American National Standard (formerly ASA standard) Z24.5-1951;
(K)
not use a Schedule I drug or other substance, an amphetamine,
a narcotic, or any other habit-forming drug; and
(L)
have no current clinical diagnosis of alcoholism.
(6)
The applicant must not be disqualified from driving a motor
vehicle.
(c)
The vision exemptions which are acceptable in lieu of the
vision requirements stated in subsection (b)(4) of this section and the Skill
Performance Evaluation certificates for missing or impaired limbs which are
acceptable in lieu of the physical requirements stated in subsection (b)(5)(A)
and (B) of this section are issued by the Federal Motor Carrier Safety Administration.
Drivers who wish to operate in interstate commerce must obtain an exemption,
waiver or Skill Performance Evaluation certificate from the Federal Motor
Carrier Safety Administration. An applicant must present the applicable document
at the time of application. Note: Refer to §16.14 of this title (relating
to Qualifications To Obtain Interstate Skills Performance Evaluation Certificate)
for information on application requirements.
§16.9.Qualifications To Drive in Intrastate Commerce.
(a)
Persons who do not qualify to drive in interstate commerce
may still qualify to drive in intrastate commerce. In such cases the commercial
driver's license (CDL) will contain an "M" restriction which will indicate
that the holder of the license is restricted to travel in intrastate commerce.
(b)
Intrastate commerce is the transportation of persons or
property (a commodity) within the State of Texas where both the point of origin
and the destination point are within the state and where no state line or
international boundary is crossed. The bill of lading will be an indicator
as to whether a shipment or commodity is interstate or intrastate.
(c)
A person applying for a CDL which authorizes operation
of a commercial motor vehicle (CMV) in intrastate commerce must meet the same
requirements as those for interstate driving, except for the following:
(1)
The applicant must be at least 18 years of age and has
held a driver license for a minimum of three (3) years.
(2)
There is no English language requirement.
(3)
An applicant may present the department's vision or limb
waiver certificate in lieu of meeting the vision or physical requirements
of Title 49, Code of Federal Regulations, Part 391.41. Waivers issued by the
department may be renewed through the License Issuance Bureau of the department
in Austin.
(4)
A driver who operates a motor vehicle in intrastate commerce
only, and does not transport property requiring a hazardous material placard,
and was regularly employed operating a commercial motor vehicle in Texas prior
to August 28, 1989, is not required to meet the federal physical and vision
standards.
(5)
A driver who operates a CMV in intrastate commerce only
may obtain a vision or limb waiver from the department provided the following
qualifications are met: (Only one waiver can be used to obtain a CDL)
(A)
Vision Waiver requirements:
(i)
the applicant has 20/40 (Snellen) or better distant visual
acuity with corrective lenses in the better eye; or
(ii)
the applicant's vision is uncorrectable in one eye and
the applicant does not wear corrective lenses, then uncorrected vision must
be at least 20/25 (Snellen) in the better eye;
(iii)
has the ability to recognize the colors of traffic signals
and devices showing standard red, green, and amber, and
(iv)
a medical certificate required under Title 49, Code of
Federal Regulations, Part 391.43.
(v)
Applicants may be referred to a vision specialist in cases
involving a failure on the vision examination:
(I)
when the applicant protests the results of the vision examination;
or
(II)
when other conditions necessitate verification by a medical
professional.
(B)
Limb Waiver requirements:
(i)
Medical certificate required under Title 49, Code of Federal
Regulations, Part 391.43; and
(ii)
Pass a comprehensive driving examination in the appropriate
class vehicle (equipped with all necessary vehicle modifications) for the
CDL the applicant is applying for.
(6)
Applications for a Texas Intrastate Vision/Limb Waiver
will include a review of the applicant's driving record for the three- year
period immediately preceding the date of the application. An applicant may
obtain a waiver from the department only if their driving record:
(A)
contains no suspensions, revocations, disqualifications
or cancellations of the driver license based on an alcohol, drug or driving
related conviction or an administrative action resulting from the operation
of any motor vehicle, including a personal vehicle;
(B)
contains no involvement in an accident for which a citation
was issued resulting in a conviction for a moving violation;
(C)
contains no convictions for a disqualifying offense, as
defined in Transportation Code, §522.081, or more than one serious traffic
conviction, as defined in Transportation Code, §522.003, during the three-year
period, which disqualified or should have disqualified the applicant in accordance
with the driver disqualification provisions of Transportation Code, §522.081;
or
(D)
contains no more than two convictions for moving violations
in a CMV.
(7)
If the driving record shows either convictions for moving
violations or accident involvement but does not indicate the type of vehicle
operated or the number of miles per hour above the posted speed limit, the
department may request additional official documentation (e.g., a copy of
the citation or accident report, or copies of court records) from the applicant.
(8)
If the applicant is arrested, cited for, or convicted of
any disqualifying offense or other moving violations during the period an
application is pending, the applicant must immediately report such arrests,
citations, or convictions to the Texas Department of Public Safety, Driver
License Division/License Issuance Bureau, PO Box 4087, Austin, Texas 78773-0310.
No waiver determination will be completed while any charge against the applicant,
for what would be a disqualifying offense, is still pending. Convictions occurring
during the processing of an application will be considered in the overall
driving record. The applicant must also report any conviction that is not
listed on the driving record because of processing delays. If a subsequent
review of the applicant's driving record identifies incidents that should
have been reported, any waiver issued may be subject to revocation.
(9)
Applicants for a Texas Intrastate Vision or Limb Waiver
must be able to meet all other physical requirements specified in 49 CFR,
Part 391.41 without the benefit of any other waiver.
(10)
Applicants for a CDL must present a valid vision or limb
waiver certificate (Medical Examiner's Certificate, form LI-5 or LI-5A) which
they obtain from the department's License Issuance Bureau in Austin. A vision
waiver may be used to obtain a Hazardous Materials Endorsement; however, a
limb waiver cannot be used to obtain this endorsement.
(11)
All recipients of a Texas Intrastate Vision/Limb Waiver
will be required to have a license with the appropriate "M" (CDL- Intrastate
Commerce Only), "P" (valid Texas vision/limb waiver required) and any other
restrictions as they apply. Waiver recipients will be notified in writing
by means of the most recent address on file of the requirement to add the
restrictions and will be given sixty days to comply. The waiver recipient's
driver record will be alarmed until the appropriate restrictions have been
added to their license. Failure to comply within the specified period may
result in the revocation of any waiver and their disqualification as a commercial
motor vehicle driver.
(12)
Applications for the renewal of the Vision or Limb Waiver
certificates will be granted provided the applicant's driving history continues
to meet the requirements as detailed in paragraph (6) of this section and:
(A)
the applicant for a vision waiver continues to meet the
vision standards listed in subsection (c)(5)(A) of this section and all other
requirements of Title 49, Code of Federal Regulations, Part 391.41; or
(B)
the applicant for a limb waiver certificate continues to
meet all other requirements of Title 49, Code of Federal Regulations, Part
391.41.
(13)
Applicants denied a limb waiver may appeal the decision
of the department by contacting the director or his designee, in writing,
within 20 days after receiving notification of the denial. The request for
an appeal must contain the name, address, and driver license number of the
applicant, the reasons why the waiver should be granted, and include all pertinent
documents which support the reasons why the waiver should be granted. The
denial is stayed pending the review of the director or his designee. The decision
of the director or his designee is final.
(14)
Appeal procedures for vision waiver denials are found
in 37 TAC §3.62 (relating to Regulations Governing Transportation Safety).
(15)
Waiver certificates will be approved by the director or
his designee and are valid for a period not to exceed two years after the
date of the applicant's medical examiner's physical examination.
(16)
If the vision or limb waiver application is denied and
the applicant currently holds a commercial driver license, the commercial
driver license privilege will be cancelled and a demand for the surrender
of the commercial driver license will be made. Failure to surrender the CDL
may result in charges being filed for failure to surrender on demand.
(17)
If the holder of a Texas vision/limb waiver fails to renew
the waiver, the driver will be notified in writing by the department of this
requirement via the most recent address on file. Failure to comply within
a 60 day period may result in the cancellation of their commercial driver
license and the demand for the surrender of the CDL currently held.
(18)
Prior to the renewal of their CDL those applicants who
were previously issued a vision waiver with an indefinite expiration date
must comply with this section in order to retain their CDL. Notice of this
requirement will be sent to the mailing address on record. Failure to comply
with this section will result in the denial of their renewal application and
the cancellation of their CDL operating privilege.
(19)
Applicants desiring to obtain a limb waiver for interstate
operation must apply to the State Director, Federal Motor Carrier Safety Administration
as described in §16.14, of this title (relating to Qualifications To
Obtain Interstate Skills Performance Evaluation Certificate.
§16.14.Qualifications To Obtain Interstate Skills Performance Evaluation Certificate.
(a)
A person who is not physically qualified to operate a commercial
motor vehicle under 49 CFR, §391.41(b)(1) or (b)(2) who is otherwise
qualified, may drive a commercial motor vehicle if the State Director, Federal
Motor Carrier Safety Administration has granted a Skill Performance Evaluation
(SPE) Certificate to that person.
(b)
A letter of application for an SPE certificate may be submitted
jointly by the driver applicant who seeks an SPE certificate and by the motor
carrier that will employ the driver applicant. Applications submitted by Texas
drivers must be addressed to the Federal Motor Carrier Safety Administration
regional office at Room 8A00, Federal Building, 819 Taylor Street, P. O. Box
902003, Fort Worth, Texas 76102.
(c)
The State Director, Federal Motor Carrier Safety Administration
may deny the application for an SPE certificate or may approve it totally
or in part and issue the SPE certificate subject to such terms, conditions,
and limitations as deemed consistent with the public interest. An SPE certificate
is valid for a period not to exceed two years from the date of issue, and
may be renewed thirty days prior to the expiration date.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 16, 2003.
TRD-200300258
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Effective date: February 5, 2003
Proposal publication date: August 16, 2002
For further information, please call: (512) 424-2135
37 TAC §16.9
The Texas Department of Public Safety adopts the repeal of §16.9,
relating to Licensing Requirements, Qualifications, Restrictions, and Endorsements,
without changes to the proposed text as published in the August 16, 2002,
issue of the
Texas Register
(27 TexReg 7372).
The repeal of §16.9 is necessary due to substantive changes having
been made concerning Licensing Requirements, Qualifications, Restrictions,
and Endorsements for Commercial Driver License applicants. Adoption of the
repeal is filed simultaneously with an adoption for new §16.9 which provides
for a vision and limb intrastate waiver program for Texas that is consistent
with federal standards and guidelines.
No comments were received regarding adoption of the repeal.
The repeal is adopted pursuant to Texas Government Code, §411.004(3),
which authorizes the Public Safety Commission to adopt rules considered necessary
for carrying out the department's work and Texas Transportation Code, §522.005.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 16, 2003.
TRD-200300257
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Effective date: February 5, 2003
Proposal publication date: August 16, 2002
For further information, please call: (512) 424-2135