[Federal Register Volume 87, Number 14 (Friday, January 21, 2022)]
[Rules and Regulations]
[Pages 3390-3419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01021]
[[Page 3389]]
Vol. 87
Friday,
No. 14
January 21, 2022
Part II
Department of Transportation
-----------------------------------------------------------------------
Federal Motor Carrier Safety Administration
-----------------------------------------------------------------------
49 CFR Part 391
Qualifications of Drivers; Vision Standard; Final Rule
Federal Register / Vol. 87 , No. 14 / Friday, January 21, 2022 /
Rules and Regulations
[[Page 3390]]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 391
[Docket No. FMCSA-2019-0049]
RIN 2126-AC21
Qualifications of Drivers; Vision Standard
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: FMCSA amends its regulations to permit individuals who do not
satisfy, with the worse eye, either the existing distant visual acuity
standard with corrective lenses or the field of vision standard, or
both, to be physically qualified to operate a commercial motor vehicle
(CMV) in interstate commerce under specified conditions. Currently,
such individuals are prohibited from driving CMVs in interstate
commerce unless they obtain an exemption from FMCSA. The new
alternative vision standard replaces the current vision exemption
program as the basis for determining the physical qualification of
these individuals.
DATES: This final rule is effective March 22, 2022.
Comments on the information collections in this final rule must be
submitted to the Office of Information and Regulatory Affairs (OIRA) at
the Office of Management and Budget (OMB) by February 22, 2022.
Petitions for Reconsideration of this final rule must be submitted
to the FMCSA Administrator no later than February 22, 2022.
ADDRESSES: Comments and recommendations for the information collections
should be sent within 30 days of publication of this final rule to
https://www.reginfo.gov/public/do/PRAMain. Find the particular
information collection by selecting ``Currently under Review--Open for
Public Comments'' or by entering the OMB control number in the search
bar.
FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief,
Medical Programs Division, FMCSA, 1200 New Jersey Avenue SE,
Washington, DC 20590-0001, (202) 366-4001, [email protected].
SUPPLEMENTARY INFORMATION: FMCSA organizes this final rule as follows:
I. Availability of Rulemaking Documents
II. Executive Summary
A. Purpose and Summary of the Final Rule
B. Summary of the Major Provisions
C. Costs and Benefits
III. Abbreviations
IV. Legal Basis for the Rulemaking
V. Regulatory History
A. NPRM
B. MRB Task 21-1 and Report
C. Notice of Availability
VI. Discussion of Comments and Responses
A. Comment Overview
B. Data Used To Determine the Safety Impact of the Alternative
Vision Standard
C. The Two-Step Physical Qualification Process
D. The Role of Ophthalmologists and Optometrists
E. Frequency of Vision Evaluations
F. Vision Evaluation Report, Form MCSA-5871
G. The Role of MEs
H. Frequency of Physical Qualification Examinations and Maximum
Period of Certification
I. Individuals Eligible for the Alternative Vision Standard
J. Acceptable Field of Vision
K. Meaning of Stable Vision
L. Elimination of the Exemption Program's 3-Year Driving
Experience Criterion
M. Road Test Requirement for Alternative Vision Standard
N. Review of an Individual's Safety Performance
O. Restricting Eligibility To Use the Alternative Vision
Standard by Vehicle Type
P. The Alternative Vision Standard Creates More Employment
Opportunities
Q. Change to the Medical Examination Process in 49 CFR
391.43(b)(1)
R. Outside the Scope of the Rulemaking
VII. Changes From the NPRM
A. Alternative Vision Standard
B. The Vision Evaluation Report, Form MCSA-5871
VIII. International Impacts
IX. Section-by-Section Analysis
A. Regulatory Provisions
B. Guidance
X. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and
Review), E.O. 13563 (Improving Regulation and Regulatory Review),
and DOT Regulatory Policies and Procedures
B. Congressional Review Act
C. Regulatory Flexibility Act (Small Entities)
D. Assistance for Small Entities
E. Unfunded Mandates Reform Act of 1995
F. Paperwork Reduction Act
G. E.O. 13132 (Federalism)
H. Privacy
I. E.O. 13175 (Indian Tribal Governments)
J. National Environmental Policy Act of 1969
I. Availability of Rulemaking Documents
To view any documents mentioned as being available in the docket or
comments received, go to https://www.regulations.gov/docket/FMCSA-2019-0049/document and choose the document to review. To view comments,
click the notice of proposed rulemaking (NPRM) or Medical Review Board
Task 21-1 Report: Proposed Alternative Vision Standard, and click
``Browse Comments.'' If you do not have access to the internet, go to
Dockets Operations at the Department of Transportation, Room W12-140,
1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays. To be sure
someone is there to help you, please call (202) 366-9317 or (202) 366-
9826 before visiting Dockets Operations.
II. Executive Summary
A. Purpose and Summary of the Final Rule
FMCSA amends its regulations to permit an individual who does not
satisfy, with the worse eye, either the existing distant visual acuity
standard with corrective lenses or the field of vision standard, or
both, to be physically qualified to operate a CMV in interstate
commerce under specified conditions. The individual must satisfy the
new alternative vision standard, along with FMCSA's other physical
qualification standards. In addition, with limited exceptions,
individuals physically qualified under the alternative standard for the
first time must satisfactorily complete a road test administered by the
employing motor carrier before operating a CMV in interstate commerce.
This rule eliminates the need for the current Federal vision exemption
program, as well as the grandfather provision in 49 CFR 391.64 for
drivers operating under the previously administered vision waiver study
program. The alternative vision standard enhances employment
opportunities while remaining consistent with FMCSA's safety mission.
B. Summary of the Major Provisions
This rule establishes an alternative vision standard, as proposed
in the NPRM (86 FR 2344 (Jan. 12, 2021)), with minor clarifications.
The final rule clarifies that the alternative vision standard is
applicable to individuals who do not satisfy, with the worse eye, the
existing FMCSA distant visual acuity standard with corrective lenses or
the field of vision standard, or both.
The alternative vision standard is comparable to the regulatory
framework FMCSA adopted in Sec. 391.46 for individuals with insulin-
treated diabetes mellitus (see 83 FR 47486 (Sept. 19, 2018)). The
alternative vision standard takes the same collaborative
[[Page 3391]]
approach to medical certification that includes a medical specialist,
in this case an ophthalmologist or optometrist, in addition to a
medical examiner (ME) on FMCSA's National Registry of Certified Medical
Examiners.
Before an individual may be medically certified under the
alternative vision standard, the individual must have a vision
evaluation conducted by an ophthalmologist or optometrist. The
ophthalmologist or optometrist records the findings of the vision
evaluation and provides specific medical opinions on the new Vision
Evaluation Report, Form MCSA-5871. Then, an ME performs a physical
qualification examination and determines whether the individual meets
the alternative vision standard, as well as FMCSA's other physical
qualification standards. If the ME determines the individual meets the
physical qualification standards, the ME may issue a Medical Examiner's
Certificate (MEC), Form MCSA-5876, for a maximum of 12 months.
In making the physical qualification determination, the ME
considers the information in the Vision Evaluation Report, Form MCSA-
5871, and utilizes independent medical judgment to apply the following
four standards. The new alternative vision standard provides that, to
be physically qualified, the individual must: (1) Have, in the better
eye, distant visual acuity of at least 20/40 (Snellen), with or without
corrective lenses, and field of vision of at least 70 degrees in the
horizontal meridian; (2) be able to recognize the colors of traffic
signals and devices showing standard red, green, and amber; (3) have a
stable vision deficiency; and (4) have had sufficient time pass since
the vision deficiency became stable to adapt to and compensate for the
change in vision. FMCSA clarifies in the last of the four standards
that there must be a period for the individual to adapt to and
compensate for the vision loss after the vision deficiency is deemed
stable by a medical professional.
Subject to limited exceptions, individuals physically qualified
under the alternative vision standard for the first time must
satisfactorily complete a road test before operating in interstate
commerce. The employing motor carrier conducts the road test in
accordance with the road test already required by Sec. 391.31.
Individuals are excepted from the road test requirement if they have 3
years of intrastate or specific excepted interstate CMV driving
experience with the vision deficiency, hold a valid Federal vision
exemption, or are medically certified under the previously administered
vision waiver study program in Sec. 391.64(b).
This rule takes a more individualized approach to medical
certification than the vision exemption program it replaces and ensures
that individuals medically certified under the alternative vision
standard are physically qualified to operate a CMV safely. The process
creates a clear and consistent framework to assist MEs with the
physical qualification determination that is equally as effective as a
program based on considering exemptions under 49 U.S.C. 31315(b). In
addition, the approach of MEs making the physical qualification
determination, instead of FMCSA as in the current exemption program, is
consistent with Congress' directive in 49 U.S.C. 31149(d) for trained
and certified MEs to determine the individual's physical qualification
to operate a CMV.
The alternative vision standard replaces the current vision
exemption program as the basis for determining the physical
qualification of individuals to operate a CMV. Accordingly, the 1,967
current vision exemption holders \1\ will no longer have to apply for
an exemption. Exemption holders have 1 year after the effective date of
this rule to comply with the alternative vision standard, at which time
all exemptions issued under 49 U.S.C. 31315(b) become void. This
transition year provides time to learn the new process for individuals
whose MEC, Form MCSA-5876, expires near the time this rule becomes
effective. Exemption holders will be notified by letter with details of
the transition to the new standard.
---------------------------------------------------------------------------
\1\ FMCSA data as of August 5, 2021.
---------------------------------------------------------------------------
Similarly, the approximately 1,800 individuals currently physically
qualified under the grandfather provisions in Sec. 391.64(b) \2\ have
1 year after the effective date of this rule to comply. One year after
the effective date of this rule all MECs, Form MCSA-5876, issued under
Sec. 391.64(b) become void.
---------------------------------------------------------------------------
\2\ FMCSA data as of August 5, 2021.
---------------------------------------------------------------------------
C. Costs and Benefits
FMCSA estimates this rule will reduce barriers to entry, thereby
increasing employment opportunities, for current and future CMV
drivers. The 1,967 drivers holding vision exemptions will no longer
have to apply for an exemption, and potential drivers who would not
qualify for an exemption because they do not have 3 years of intrastate
driving experience may meet the alternative vision standard and be able
to operate a CMV in interstate commerce. Additionally, previously
qualified interstate CMV drivers who no longer satisfy, with the worse
eye, either the distant visual acuity standard with corrective lenses
or field of vision standard, or both, will be able to return sooner
than 3 years to operating in interstate commerce. These drivers are
also relieved of the time and paperwork burden associated with applying
for or renewing an exemption.\3\ A one-time road test is less
burdensome on drivers than obtaining 3 years of intrastate driving
experience and addresses the consideration that some drivers live in
States that do not issue vision waivers. The final rule results in
incremental cost savings of approximately $1.6 million annually by
eliminating the need for the Federal vision exemption program. This
estimate includes the additional annual impact of approximately $44,000
for the road test. The Agency does not expect negative impacts on
safety. The Agency also notes that no safety organizations commented on
the NPRM.
---------------------------------------------------------------------------
\3\ As discussed below in section X.F. with respect to the
information collection titled ``Medical Qualification
Requirements,'' FMCSA attributes 2,236 annual burden hours at a cost
of $67,486 for drivers to request and maintain a vision exemption.
The final rule eliminates this entire burden.
---------------------------------------------------------------------------
III. Abbreviations
ACOEM American College of Occupational and Environmental Medicine
AOA American Optometric Association
ATA American Trucking Associations, Inc.
BLS Bureau of Labor Statistics
CDL Commercial Driver's License
CFR Code of Federal Regulations
CMV Commercial Motor Vehicle
DOL Department of Labor
DOT Department of Transportation
E.O. Executive Order
FHWA Federal Highway Administration
FMCSA Federal Motor Carrier Safety Administration
FR Federal Register
GDP Gross Domestic Product
ICR Information Collection Request
ME Medical Examiner
MEC Medical Examiner's Certificate, Form MCSA-5876
MRB Medical Review Board
NAICS North American Industry Classification System
NOA Notice of Availability
NPRM Notice of Proposed Rulemaking
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OOIDA Owner-Operator Independent Drivers Association
RFA Regulatory Flexibility Act
SBA Small Business Administration
Secretary Secretary of Transportation
Sec. Section
U.S.C. United States Code
IV. Legal Basis for the Rulemaking
FMCSA has authority under 49 U.S.C. 31136(a) and 31502(b)--
delegated to the Agency by 49 CFR 1.87(f) and (i),
[[Page 3392]]
respectively--to establish minimum qualifications, including physical
qualifications, for individuals operating CMVs in interstate commerce.
Section 31136(a)(3) requires specifically that the Agency's safety
regulations ensure that the physical condition of CMV drivers is
adequate to enable them to operate their vehicles safely and that
certified MEs trained in physical and medical examination standards
perform the physical examinations required of such drivers.
In addition to the statutory requirements specific to the physical
qualifications of CMV drivers, section 31136(a) requires the Secretary
of Transportation (Secretary) to issue regulations on CMV safety,
including regulations to ensure that CMVs ``are maintained, equipped,
loaded, and operated safely'' (section 31136(a)(1)). The remaining
statutory factors and requirements in section 31136(a), to the extent
they are relevant, are also satisfied here. The final rule does not
impose any responsibilities on CMV drivers that ``impair their ability
to operate the vehicles safely'' (section 31136(a)(2)), or ``have a
deleterious effect on the physical condition'' of CMV drivers (section
31136(a)(4)). FMCSA does not anticipate that drivers will be coerced to
operate a vehicle because of this rule (section 31136(a)(5)).
Additionally, in 2005, Congress authorized the creation of the
Medical Review Board (MRB), comprised of experts in a variety of
medical specialties relevant to the driver fitness requirements, to
provide medical advice and recommendations on physical qualification
standards (49 U.S.C. 31149(a)). The position of Chief Medical Examiner
was authorized at the same time (49 U.S.C. 31149(b)). Under section
31149(c)(1), the Agency, with the advice of the MRB and Chief Medical
Examiner, is directed to establish, review, and revise medical
standards for CMV drivers that will ensure their physical condition is
adequate to enable them to operate the vehicles safely (see also 49
U.S.C. 31149(d)). Finally, the Secretary has discretionary authority
under 49 U.S.C. 31133(a)(8) to prescribe recordkeeping and reporting
requirements.
FMCSA has considered the costs and benefits associated with this
final rule (49 U.S.C. 31136(c)(2)(A) and 31502(d)). Those factors are
discussed in the Regulatory Analyses section of this rule.
V. Regulatory History
A. NPRM
On January 12, 2021, FMCSA published an NPRM titled
``Qualifications of Drivers; Vision Standard'' (86 FR 2344). The NPRM
included a detailed discussion of the background and regulatory history
for this action, including the existing vision standard, the vision
waiver study program and grandfathered drivers, and the Federal vision
exemption program. It also included a discussion of the reports and
analyses undertaken since 1990 to gather information and evaluate the
vision standard, the vision waiver study program, and the vision
exemption program, as well as the MRB recommendations pertaining to
vision and FMCSA's conclusions regarding those reports and analyses.
While not repeated here, these discussions can be found in the NPRM (86
FR 2348-56).
A detailed discussion of the rationale for the proposed alternative
vision standard is set forth in the NPRM (86 FR 2356-61) and will not
be repeated here. Summaries of the relevant provisions of the NPRM are
included in the discussion of the comments below. The NPRM's comment
period closed on March 15, 2021.
B. MRB Task 21-1 and Report
The NPRM provided that following the closure of the comment period
FMCSA would ask the MRB to review all comments from medical
professionals and associations. Accordingly, in May 2021, FMCSA
requested in MRB Task 21-1 that the MRB review and analyze the nine
comments from medical professionals and associations, make
recommendations regarding the proposed alternative vision standard, and
identify factors the Agency should consider regarding next steps in the
vision rulemaking. In addition, FMCSA requested the MRB's
recommendations with respect to whether the information requested from
ophthalmologists and optometrists on the proposed Vision Evaluation
Report, Form MCSA-5871, provided sufficient information for an ME to
make a medical certification determination.
In May 2021, the MRB held a public meeting to consider MRB Task 21-
1, among other topics. On July 20, 2021, the MRB provided its
recommendations to FMCSA in MRB Task Report 21-1.\4\ The MRB made the
following recommendations:
---------------------------------------------------------------------------
\4\ Details of the meeting, including MRB Task 21-1, the MRB
Task 21-1 Report, and supporting materials used by the MRB, are
posted on the Agency's public website at https://www.fmcsa.dot.gov/medical-review-board-mrb-meeting-topics (last accessed Aug. 31,
2021). The MRB Task 21-1 Report is also available in the docket at
https://www.regulations.gov/document/FMCSA-2019-0049-0117.
---------------------------------------------------------------------------
I. Overview
A. With respect to the medical aspects of the proposed
alternative vision standard only, if the MRB does not make a
specific recommendation to change a provision, the MRB concurs with
the provision as proposed in the January 2021 NPRM.
B. The MRB recommends that the Agency deemphasize that the
alternative vision standard begins with the vision evaluation
because the individual may be examined first by the medical
examiner.
II. Recommendations for the Regulatory Standards
A. The MRB recommends that the current field of vision
requirement be changed from 70 degrees to 120 degrees for the
alternative vision standard for monocular vision drivers.
B. The MRB agrees that the requirement for sufficient time to
adapt to and compensate for the vision deficiency should not be
changed in the proposed alternative vision standard. The MRB notes
it does not have sufficient data to establish a specific waiting
period for an individual who has a new vision deficiency.
III. Recommendations for the Vision Evaluation Report
A. The MRB recommends that the physical qualification standards
for the alternative vision standard, as set forth in the paragraph
below from Task 21-1 but modified to reflect a field of vision of at
least 120 degrees, be added to page 1 in the instructions after
FMCSA's definition of monocular vision:
The proposal would provide that, to be physically qualified
under the alternative vision standard, the individual must: (1) Have
in the better eye distant visual acuity of at least 20/40 (Snellen),
with or without corrective lenses, and field of vision of at least
120 degrees in the horizontal meridian; (2) be able to recognize the
colors of traffic signals and devices showing standard red, green,
and amber; (3) have a stable vision deficiency; and (4) have had
sufficient time to adapt to and compensate for the vision
deficiency.
B. The MRB recommends that the Agency expand the medical opinion
in question 12 to require that the individual can drive a CMV safely
with the vision condition. The MRB notes that the medical opinion
provided by the ophthalmologist or optometrist regarding whether the
individual has adapted to and compensated for the change in vision
sufficiently encompasses depth perception. The MRB notes further
that question 12 sufficiently implies that time is needed to adapt
and compensate for the change in vision but appropriately relies on
the ophthalmologist or optometrist conducting the vision evaluation
to determine the appropriate period of time on a case-by-case basis.
C. The MRB recommends that the requests for information about
stability in questions
[[Page 3393]]
11 and 13 both be retained. The questions solicit different
information.
D. The MRB recommends that the Agency change the order of the
requested information to be questions 1 through 9, 10, 12, 13, and
then 11.
E. The MRB recommends that the vision evaluation report not
request information relating to severe non-proliferative diabetic
retinopathy and proliferative diabetic retinopathy because they are
evaluated separately under the standard for insulin-treated diabetes
mellitus.
C. Notice of Availability
On August 24, 2021, FMCSA published a notice of availability (NOA)
of the MRB's recommendations in the Federal Register and requested
public comment on them (86 FR 47278). The comment period closed on
September 23, 2021.
VI. Discussion of Comments and Responses
A. Comment Overview
In this final rule, FMCSA responds to public comments to the NPRM
and the NOA regarding the recommendations in the MRB Task 21-1 Report.
1. NPRM
In response to the NPRM, FMCSA received 69 submissions. One
submission was identified as not relevant, two submissions were
duplicates, and one commenter provided two different submissions.
Accordingly, 65 commenters (primarily individuals) provided responsive
comments to the NPRM. The commenters were healthcare providers, one
medical association, drivers, motor carriers, two trade associations,
and private citizens. Fourteen commenters were anonymous. No safety
organizations commented on the NPRM.
The majority of commenters (45) expressed general support for the
proposed rule. These commenters included a board-certified retina
surgeon and ophthalmologist, two MEs, CMV drivers with either Federal
vision exemptions or State vision waivers, former drivers who no longer
satisfy the vision standard, individuals who have not had the
opportunity to drive a CMV because of their vision, the Owner-Operator
Independent Drivers Association (OOIDA), and individuals who viewed the
rule as reducing discrimination. Common reasons cited for supporting
the proposal include the following: The evidence shows monocular
drivers are safe and have no adverse impact on safety; the rule would
remove barriers to entry, create job opportunities, encourage more
individuals to enter the workforce, keep experienced drivers, and
reduce the driver shortage; the rule is modeled on the approach used to
eliminate the exemption program and create an alternative physical
qualification standard for insulin-treated diabetes mellitus that has
worked well; the rule would be a step toward less discrimination and
more inclusion in the workforce; and the proposed standard is more
streamlined than the exemption process so it would decrease time and
paperwork burdens for drivers.
Twenty commenters generally opposed the proposed rule (including
commenters who supported the proposal in concept but wanted further
study before implementing it). These commenters included four MEs, the
American College of Occupational and Environmental Medicine (ACOEM),
Concentra (a healthcare company that delivers occupational medicine and
urgent care services to employers and patients), two drivers, and the
American Trucking Associations, Inc. (ATA). Common reasons cited for
opposing the proposal include the following: The proposal fails to
demonstrate an appropriate level of safety or the data is inconclusive
on safety; findings from drivers enrolled in the waiver and exemption
programs cannot be applied to the general population of drivers; the
road test is not a suitable alternative to 3 years of driving
experience and places a burden on motor carriers; the field of vision
requirement should be greater than 70 degrees; and the MRB has not
recommended changes to the vision standard.
2. NOA
In response to the NOA on the MRB Task 21-1 Report, FMCSA received
14 submissions. The commenters were one ME, one medical association,
drivers and individuals with vision loss in one eye, one motor carrier,
one trade association, private citizens, and five anonymous commenters.
No safety organizations commented on the NOA.
The NOA stated that ``Comments must be limited to addressing the
recommendations in the MRB Task 21-1 Report'' (86 FR 47279). Only four
commenters provided comments that were responsive, at least in part, to
the MRB recommendations. Five commenters provided general support for
the alternative vision standard. Two commenters opposed the new vision
standard. Three comments were outside the scope of the rulemaking.
The MRB's recommendations and public comments responsive to them
are addressed where applicable in the discussion of comments and
responses below.\5\ Because comments to the NOA were limited to the MRB
recommendations, comments relating to other aspects of the alternative
vision standard are not discussed. FMCSA notes that none of these
comments presented new issues or information not raised in the comments
submitted in response to the NPRM.
---------------------------------------------------------------------------
\5\ The MRB indicated in the MRB Task 21-1 Report that it
limited its recommendations to the medical aspects of the proposed
alternative vision standard. Therefore, FMCSA does not reference the
MRB Task 21-1 Report in sections that do not relate to the medical
aspects of the alternative vision standard.
---------------------------------------------------------------------------
B. Data Used To Determine the Safety Impact of the Alternative Vision
Standard
NPRM: FMCSA summarized the reports and analyses undertaken since
1990 to gather information and evaluate the vision standard, previous
waiver study program, and current exemption program, as well as the MRB
recommendations pertaining to vision. FMCSA concluded that the
available information did not call into question the validity of the
vision exemption program. The Agency noted the available information
did not establish strong relationships between specific measures of
vision and their correlation to driver safety. FMCSA acknowledged
``Data on the relationship between monocular vision and crash
involvement is sparse, conflicting with respect to crash risk, and not
definitive. Moreover, the Agency must exercise caution when
interpreting the data because of the different definitions of
`monocular vision' in the literature'' (86 FR 2356).
Accordingly, FMCSA found the experience with the vision waiver
study and exemption programs to be most relevant in establishing an
alternative vision standard. Based on that experience, FMCSA determined
the safety performance of the individuals in the vision waiver study
and vision exemption programs is at least as good as that of the
general population of CMV drivers. FMCSA stated that, if an individual
meets the proposed alternative vision standard, the Agency expects
there will be no adverse impact on safety due to the individual's
vision.
Comments on the Data Used To Determine the Safety Impact of the
Alternative Vision Standard: Robert E. Morris, M.D., a board-certified
retina surgeon and ophthalmologist, stated, ``it is well recognized in
medical journals that individuals who have experienced a vision loss in
one eye can and usually develop compensatory viewing behavior to
mitigate the vision loss. My
[[Page 3394]]
experience in treating patients with the loss of vision in one eye is
that these individuals, over time, are not limited by their lack of
binocularity with respect to driving once they have adapted to and
compensated for the change in vision.'' Dr. Morris indicated that if an
individual meets the alternative vision standard there will be no
adverse impact on safety due to the vision. Dr. Morris encouraged,
``without any reservation,'' that the alternative vision standard be
adopted as proposed.
A commenter who is an ME and has examined a moderate number of
drivers with monocular vision stated that they have adapted to the
monocular vision and ``have been driving professionally successfully.''
The commenter referred to an August 2005 abstract published in
Optometry and Vision Science, titled ``The Impact of Visual Field Loss
on Driving Performance: Evidence from On-Road Driving Assessments,''
that ``concluded `a large proportion of monocular drivers were safe
drivers.' ''
OOIDA stated that the ``research presented demonstrates that
individuals with monocular vision can safely operate a CMV.'' OOIDA
stated further that ``There is also considerable medical literature
indicating that individuals with vision loss in one eye can and do
develop compensatory viewing behavior to mitigate their vision loss.''
OOIDA commented that the alternative vision standard ``ensures
sufficient physical qualifications are met.''
Three commenters stated studies show the alternative vision
standard will not compromise safety. A different commenter stated,
``There is no factual evidence to support the idea that reduced vision
has a negative impact on driving abilities.'' Another commenter, a
motor carrier, also commented that the alternative vision standard
would not increase danger to the public.
A commenter stated the alternative vision standard ``comports with
current scientific findings'' and ``is not arbitrary, . . . It is based
on actual reports from credentialed professionals.'' The commenter
noted that ``safeguards will be in place to catch and mitigate any
safety issues.'' For example, an ME makes the vision determinations
instead of an FMCSA employee. The road test ensures a driver operating
under the alternative vision standard can physically drive the CMV
safely. Finally, the proposed 12-month maximum certification period
ensures a driver will be re-evaluated in a year to determine continued
eligibility for CMV driving.
A commenter who holds a Federal vision exemption stated individuals
who have had time to adapt and ``compensate for their deficiency are,
indeed, safer and more conscientious than your average driver.''
Several other commenters who hold intrastate vision waivers noted their
safe driving records or that their vision does not hinder them in any
way. They stated it does not make sense that they can drive in
intrastate commerce but not in interstate commerce. A commenter, who
has always had monocular vision and has a ``terrific driving record,''
stated ``Having one eye increases your awareness of the need to be
diligent about your surroundings.''
In contrast, ACOEM and Concentra commented that the studies cited
are inconsistent in the definition of the conditions studied (i.e.,
different definitions of monocular vision were used) and conclusions
reached. They stated that some of the studies reported insufficient
evidence of monocular drivers being at higher risk of crash; however,
they reminded ``all concerned that lack of evidence of the risk is not
evidence of absence.'' They stated that the study findings from drivers
enrolled in the vision waiver and exemption programs cannot be applied
to the general population of drivers. According to ACOEM and Concentra,
the drivers in these programs were a carefully selected (subject to
very specific criteria that included 3 years of driving experience and
a good driving record), highly motivated, and closely vetted and
monitored group. ACOEM added that ``making the jump to apply these
findings to the general population of drivers is lacking in sufficient
evidence to modify the current vision standard.''
Concentra commented that one of the rebuttals to its concerns will
be that there have not been any significant problems with monocular
drivers in the last 30 years. It stated this ``could lead one to
conclude drivers with monocular vision are as safe as other drivers.''
Concentra reminded readers that data is either absent or conflicting
regarding the safety of monocular drivers. Additionally, with such a
small percentage of drivers having monocular vision, Concentra stated
the ``data will continue to be difficult to obtain in a statistically
significant manner.''
Two commenters, who are medical doctors and MEs, stated that the
existing vision standard should not be changed. One stated that the
existing standard is loose enough as it is. The other added that, as a
criterion for safe driving, it is imperative to have acuity in vision
to drive a multi-ton vehicle around other drivers and pedestrians on
the road. A commenter agreed with the doctors, stating that when it
comes to public safety individuals with vision impairments should not
drive CMVs because the impairments affect their capabilities. A
different commenter who is an ME expressed ``concern about changing the
vision requirements.''
ATA commented that since 1992 it has consistently objected to
loosening the vision standard in the absence of robust data showing
such revisions would not deteriorate the current level of safety. ATA
stated it ``has consistently advocated that a revised but universally
applied vision standard would be superior to the current exemption
program and the inconsistency that results from its ad hoc
application.'' ATA noted that its ``members accept FMCSA's analysis
that the Agency `has observed no adverse impact on CMV safety due to
the vision exemption program.''' However, ATA continued that it
``strongly objects to FMCSA's use of the federal vision exemption
program data without factoring in the safety implications of removing
essential safeguards contained within the program to warrant the
proposed revision to the vision standard.'' ATA stated that ``FMCSA's
NPRM fails to propose a standard that would demonstrably maintain the
appropriate level of safety.''
Three commenters recommended that FMCSA undertake further studies
before proposing an alternative vision standard. The first commenter
stated: (1) The statement about vision data from the ``Visual
Requirements and Commercial Drivers'' report supports maintaining the
current requirements for overall safety; (2) the MRB recommended in
2008 that the vision standard should not be changed; and (3) the 2008
evidence report summarized that the data was not conclusive to
determine crash risk so more study is required. The commenter noted
that the accident rate study conducted from August 1992 to November
1995 found the accident rates of both the waiver group and control
group were significantly better/lower than that of the national rates
because both groups were being monitored. The commenter stated that one
can infer that if all CMV drivers were in a similar monitoring program
then the overall national accident rates would follow this reduced
accident rate trend and improve overall safety. The commenter also
stated that, before any reduction to existing vision standards can
occur, all relevant data must be evaluated through consistent
methodologies (i.e., the creation of studies, defined terms, data
collection, reports, documentation standards, safety standards, etc.).
The second commenter supported the ``idea of this rule,'' but the
commenter stated
[[Page 3395]]
that further study must be done to determine the full impact of this
rule before it is adopted. The third commenter stated that, as ``the
study results are mixed, a more detailed study or review of the
available literature should be conducted before this rule is finalized.
The current literature does not appear to support the argument that
there will be no impact on safety.''
One commenter noted a finding in the November 2016 Analysis Brief
that the crash rate of vision exemption drivers was statistically
different and higher than the crash rate in the control group. That
commenter ``would feel safer if the vision standards became a little
stricter for CMVs.''
Another commenter stated the proposed amendment finds ``the perfect
balance between the correct qualification need for these individuals
and road safety.'' The commenter continued that modification of the
existing vision standard is needed and the proposal seems to provide a
framework for who ensures proper evaluation and criteria are met.
However, the commenter noted the need to remain vigilant of the data
presented because of inconsistencies among studies and ``limitations in
regard to our populations.''
A commenter, who acknowledged not reading the reports discussed in
the NPRM, stated that as a safety-minded professional the commenter saw
``the reduced standards as a gateway for more accidents.'' The
commenter asked, if FMCSA has data to indicate drivers with vision
exemptions had no significant issues, is it possible the data was based
on limited markets where drivers operated in areas with less traffic.
The commenter concluded that the alternative vision standard ``will
have a profound impact on public safety'' and ``hope[d] the FMCSA
discards this NPRM in the interest of public safety.''
Several additional commenters opposed the alternative vision
standard based on general safety concerns. For example, one commenter
stated, while agencies are working to get more drivers on the road and
make it easier for drivers to obtain their Federal medical
certification, ``there should remain certain criteria for obvious
safety reasons.'' The commenter continued that an amendment to the
vision standard would not be in the best interest of the driver or the
public on the road. Similarly, a different commenter noted the rule
would be effective in creating more job opportunities and saving a big
amount of money but did ``not think that this rule is effective in
ensuring roads are safe for every driver.'' Another commenter stated
our roads are dangerous enough already and did not want people with
vision impairments on the road. One commenter, who has been driving for
more than 34 years, stated the vision standards should be left alone.
Finally, another commenter stated that FMCSA needs to be more worried
about other issues and that the existing standard is not a cause in
that many accidents.
MRB Task 21-1 Report: The MRB stated with respect to the medical
aspects of the proposed alternative vision standard only, if the MRB
did not make a specific recommendation to change a provision, the MRB
concurred with the provision as proposed in the January 2021 NPRM. The
MRB did not recommend that FMCSA forego adoption of the alternative
vision standard.
Comments on MRB Task 21-1 Report: ATA repeated its prior comments
that the data on which the rule is based is insufficient. ATA stated
data collected from the vision exemption program included a requirement
that drivers have 3 years of intrastate driving experience with a
stable vision deficiency and exempted drivers must meet strict driving
record requirements. ``Accordingly, the data collected under the
exemption program does not accurately indicate the level of safety that
can be expected from all drivers qualified under the proposed
alternative standard should the new standard remove these safeguards.''
ATA urged FMCSA ``to collect more data on the safety of drivers with a
vision deficiency prior to adopting the alternative standard as
introduced.''
Response: The Agency stands by its conclusion that individuals who
satisfy the alternative vision standard requirements do not create an
increased risk of unsafe operation of a CMV due to their vision that
would cause injury to persons or property. The alternative vision
standard is therefore ``adequate to enable them to operate the vehicles
safely'' (49 U.S.C. 31136(a)(3)). Indeed, the comments provided by Dr.
Morris,\6\ a board-certified retina surgeon and ophthalmologist who
encouraged the adoption of the alternative standard without
reservation, are consistent with FMCSA's assessment of the safety
impact of the new standard. Commenters provided no new information or
data that persuades the Agency to depart from its conclusion.\7\
Moreover, the MRB generally supports moving ahead with an alternative
vision standard.
---------------------------------------------------------------------------
\6\ The Curriculum Vitae submitted establishes Dr. Morris as an
expert in the vision field (see https://www.regulations.gov/comment/FMCSA-2019-0049-0087).
\7\ Although the study titled ``The Impact of Visual Field Loss
on Driving Performance: Evidence from On-Road Driving Assessments''
referred to by a commenter generally supports the safety of
monocular drivers, FMCSA does not rely on the study to support this
rule due to the study's small sample size.
---------------------------------------------------------------------------
The Agency acknowledges, as it did in the NPRM, that the data on
the relationship between monocular vision and crash involvement is
sparse, conflicting with respect to crash risk, and not definitive. It
does not establish strong relationships between specific measures of
vision and their correlation to driver safety. FMCSA also acknowledges
that different definitions of ``monocular vision'' are used in the
literature. These limitations in studies relating to crash risk explain
why the Agency elects to rely on its long experience with the vision
waiver study and exemption programs as a basis for this rule in
addition to the medical literature.
Further studies evaluating the impact of a vision deficiency in one
eye on driving performance are unnecessary for the purposes of this
rule. Considering the long period over which the vision waiver and
exemption programs have operated, the Agency has sufficient information
and experience to reach generalized conclusions. The experience with
the programs has allowed FMCSA to evaluate the vision criteria used in
the programs since 1992 and adopted in this rule in the context of
actual CMV driving experience. Contrary to the implication by one
commenter, FMCSA finds no basis for the assertion that the experience
of drivers in the programs occurred in limited markets with less
traffic.
FMCSA disagrees that the experience and safety determinations based
on the vision waiver study and exemption programs cannot be applied to
the alternative vision standard. To isolate the impact of a vision
deficiency on driving, the Agency excluded drivers with a history of
unsafe driving behaviors. After 30 years of experience with the vision
waiver study and exemption programs, FMCSA finds it is reasonable to
conclude that, if the vision deficiency had an adverse impact on the
ability to operate a CMV, there would be observed evidence of that
adverse impact over the long period, even though the individuals were
generally safe drivers, experienced in driving with the vision
deficiency, or monitored. FMCSA has no such evidence.
[[Page 3396]]
One commenter noted a finding in the November 2016 Analysis Brief
that the crash rate of vision exemption drivers was statistically
different and higher than the crash rate in the control group. As FMCSA
explained in the NPRM, that finding is not cause for concern. The
findings of the Analysis Brief represent a limited period and are
subject to several limitations. In particular, the crash information
did not consider whether the CMV driver was at fault in any given
crash. Moreover, it is not possible to know whether visual function
caused or contributed to the crash. FMCSA monitors the performance of
individual drivers in the vision exemption program continuously. FMCSA
has no evidence to suggest drivers in the exemption program are less
safe than the general population of CMV drivers.
Another commenter stated that the August 1992 to November 1995
study found the accident rates of the waiver group and control group
were significantly lower than that of the national rate. The commenter
inferred that was because the wavier and control groups were monitored
in some manner. The Agency clarifies that study did not include a
control group. The comparison was of the accident rate in the waiver
group to the national rate.
FMCSA disagrees that the alternative vision standard presents a
``loosening'' or ``reduction'' in vision standards. The Agency finds,
as did Dr. Morris, that the requirements adopted are appropriate and
will not adversely impact safely. The rule allows individuals who have
developed the skills to adapt to and compensate for the vision loss to
demonstrate that they also have the skills to operate a CMV safely. The
rule includes safeguards to ensure that only individuals who have
developed the skills to adapt to and compensate for the vision loss
will be physically qualified.
As compared to the existing physical qualification process,
individuals physically qualified under the alternative vision standard
are subject to more stringent requirements. Individuals physically
qualified under the existing vision standard undergo only a basic
vision screening test performed by MEs at least once every 2 years.
Individuals physically qualified under the alternative vision standard
must undergo a thorough eye evaluation conducted by an ophthalmologist
or optometrist using sophisticated equipment at least once a year. As
discussed further below, the ophthalmologists and optometrists
performing the evaluations are to provide their medical opinions
regarding whether the individuals evaluated have adapted to and
compensated for the change in vision such that they can drive a CMV
safely with the vision deficiency. Moreover, individuals physically
qualified under the alternative vision standard must undergo a physical
qualification examination at least once a year.
As compared to the case-by-case determinations made in the
exemption program, the alternative vision standard provides a
consistent approach to medical certification of individuals who do not
meet the existing vision standard. This approach of MEs making the
physical qualification determination, instead of FMCSA, as in the
exemption program, is consistent with Congress' directive in 49 U.S.C.
31149(d) for trained and certified MEs to assess the individual's
health status.
C. The Two-Step Physical Qualification Process
NPRM: FMCSA proposed a two-step process for physical qualification
under the alternative vision standard. First, an individual seeking
physical qualification would obtain a vision evaluation from an
ophthalmologist or optometrist who would record the findings and
provide specific medical opinions on the proposed Vision Evaluation
Report, Form MCSA-5871. Next, an ME would perform an examination and
determine whether the individual meets the proposed vision standard, as
well as FMCSA's other physical qualification standards.
Comments on the Two-Step Physical Qualification Process: Six
commenters remarked favorably regarding the collaborative physical
qualification process. Three stated the approach has worked well in the
standard for insulin-treated diabetes mellitus. For example, one
commenter who is an ME stated the alternative standard for insulin-
treated diabetes mellitus, which involves a similar two-step process
for physical qualification, has worked very well in practice. The
commenter continued that the proposed changes to the vision standard
would make the certification process easier for both MEs and drivers.
Other commenters agreed that medical professionals should determine
whether an individual meets the physical qualification standards. OOIDA
stated that, as in the current Federal vision exemption program, the
alternative vision standard still requires consultation with and
approval from medical professionals, but it will eliminate time and
paperwork burdens that are required under the exemption program.
MRB Task 21-1 Report: The MRB recommended that the Agency
deemphasize that the alternative vision standard begins with the vision
evaluation because the individual may be examined first by the ME.
Comments on MRB Task 21-1 Report: The American Optometric
Association (AOA) supported the two-step process to physically qualify
drivers and the requirement to have the first step be for the
individual to seek an evaluation by an ophthalmologist or optometrist.
It continued that ensuring all individuals are thoroughly evaluated by
an expert in eye care is critical and the information and opinions
should be carefully considered and respected. The AOA commented that
``Relying on the information provided by the doctor of optometry or
ophthalmologist will be critical in evaluating potential drivers.''
ATA cautioned ``that deemphasizing the two-step process might
result in additional burdens for a driver who would need to make
multiple visits to a medical examiner.'' ATA emphasized that
individuals who know they will be physically qualified under the
alternative vision standard should see the vision specialist first.
However, if a driver is evaluated by an ME first and subsequently
referred to a vision specialist, that driver will have to return to the
ME again. At the same time, ATA stated its concern that deemphasizing
the two-step certification process would result in some individuals
with a vision deficiency being wrongly issued medical certification
because MEs are not vision specialists, so individuals should see an
ophthalmologist or optometrist before the physical qualification
examination.
Response: FMCSA agrees that the alternative vision standard would
lessen the complexity of the medical certification process for
individuals who do not meet the vision standard without an exemption.
The similar streamlined approach for medical certification of
individuals with insulin-treated diabetes mellitus has worked well and
received positive acceptance from drivers and employers in the motor
carrier industry. The collaborative physical qualification process in
this final rule provides sufficient safeguards to ensure that only
individuals who have adapted to and compensated for their vision
deficiency will receive medical certification.
In response to the MRB's recommendation, FMCSA made changes to the
terminology in this preamble to emphasize that a vision evaluation must
be completed before an individual may be physically qualified under the
alternative vision standard (see 49 CFR 391.44(b) and (c)). FMCSA uses
``collaborative'' to describe the process
[[Page 3397]]
without emphasizing which medical professional first assesses the
individual.
For individuals who are aware they will be physically qualified
under Sec. 391.44, they begin the certification process by going to an
ophthalmologist or optometrist for a vision evaluation. For some,
however, the need for a vision evaluation will not be known until they
fail to satisfy the existing vision standards at a physical
qualification examination. In this situation, a second visit to an ME
is unavoidable. Because MEs are not vision specialists, a visit to an
ophthalmologist or optometrist is always necessary to ensure the
individual's vision is evaluated sufficiently before an ME may issue a
medical certificate that ensures the individual can operate a CMV
safely. This process is no different from current practice for other
conditions when an ME makes a request for a referral to or consultation
with another appropriate healthcare provider.
Regardless of how an individual begins the certification process,
an individual being evaluated under the alternative vision standard
must have an eye evaluation by an ophthalmologist or optometrist to be
medically certified. Therefore, there is no concern that deemphasizing
the order of the certification process will result in some individuals
with a vision deficiency being incorrectly certified as physically
qualified. The Vision Evaluation Report, Form MCSA-5871, contains the
information necessary for an ME to determine whether the individual
satisfies the existing vision standard using more sophisticated testing
equipment or requires certification under the alternative vision
standard.
FMCSA emphasizes that the ME is to consider the information
provided on the Vision Evaluation Report, Form MCSA-5871, but is to use
independent medical judgment to evaluate the information and determine
whether the individual meets the alternative vision standard. It is the
ME who makes the physical qualification determination in the
collaborative process.
D. The Role of Ophthalmologists and Optometrists
NPRM: FMCSA proposed that an individual seeking physical
qualification under the alternative vision standard would obtain a
vision evaluation from an ophthalmologist or optometrist who would
record the findings and provide specific medical opinions on the
proposed Vision Evaluation Report, Form MCSA-5871.
Comments on the Role of Ophthalmologists and Optometrists: Three
commenters endorsed requiring an individual to be seen by an
ophthalmologist or optometrist. Two other commenters, however,
expressed concerns about allowing the individual to select the
ophthalmologist or optometrist. One stated that having the evaluation
by a doctor of an individual's choosing may be ineffective in proving
whether an individual can operate a CMV with limited vision. The other
commenter asked what would prevent a driver with recent loss of vision
from ``doctor shopping'' until the driver finds an ophthalmologist or
optometrist who is willing to state the driver has adjusted to the loss
of vision. The commenter stated that FMCSA would have no way to be
aware of drivers who doctor shop.
The same commenter remarked that the proposed process appears to be
one that can be subjective, rather than objective like the regulation
for individuals with insulin-treated diabetes mellitus that relies on
numbers. The commenter noted a driver could simply report that the
driver has adjusted to the partial vision loss when that may not be the
case. The commenter asked if there could be direct numbers or
procedures assigned to the driver's eye evaluation to prevent that from
happening. In contrast, one commenter stated no doctor is going to sign
off on a driver if the doctor knows a driver cannot drive in a safe
manner.
MRB Task 21-1 Report: The MRB made five recommendations relating to
the Vision Evaluation Report, Form MCSA-5871, that generally relate to
the role of ophthalmologists or optometrists in the certification
process. Those recommendations are discussed in detail in connection
with the report and the relevant requirement in the alternative vision
standard.
Response: FMCSA expects that ophthalmologists and optometrists will
not complete the Vision Evaluation Report, Form MCSA-5871, unless they
have reliable information on which to base their opinions, as stated by
one commenter. Concerning the comments on drivers self-selecting
ophthalmologists and optometrists and doctor shopping for favorable
results, FMCSA anticipates that often the ophthalmologist or
optometrist completing the report will have treated the individual
seeking evaluation and have knowledge of the individual's vision
medical history. However, the Agency is not requiring the
ophthalmologist or optometrist completing the report to have provided
medical treatment to the individual previously. If the ophthalmologist
or optometrist does not have a previous relationship with an individual
seeking evaluation, typical medical practice would be for the
ophthalmologist or optometrist to request and review the individual's
prior vision and medical records.
The Vision Evaluation Report, Form MCSA-5871, requests objective
information that is the basis for the medical opinions rendered by the
ophthalmologist or optometrist. The information is obtained through a
vision evaluation that includes formal perimetry results for the field
of vision and prior medical documentation. The Agency finds it unlikely
an ophthalmologist or optometrist would merely accept an individual's
statement that the individual has adapted to and compensated for the
vision loss. Instead, the ophthalmologist or optometrist makes that
determination based on multiple factors such as the clinical
examination, test results, history of the cause and duration of the
vision loss, and medical information regarding the time needed to adapt
to and compensate for the vision loss based on all the relevant
factors. In addition, ophthalmologists and optometrists completing the
report must attest that the information provided is true and correct to
the best of their knowledge.
E. Frequency of Vision Evaluations
NPRM: FMCSA proposed that individuals physically qualified under
the alternative vision standard would have vision evaluations by an
ophthalmologist or optometrist before each annual or more frequent
physical qualification examination by an ME.
Comments on the Frequency of Vision Evaluations: Dr. Morris, a
board-certified retina surgeon and ophthalmologist, encouraged FMCSA,
``without any reservation,'' to adopt the alternative vision standard.
Another commenter agreed that vision evaluations should be completed at
least yearly. A different commenter, an ME, stated the MRB recommended
that FMCSA seek comments from ophthalmologists, optometrists, or their
professional associations regarding the frequency of evaluation because
there are many different eye conditions and they could be fixed or
progressive.
MRB Task 21-1 Report: The MRB did not recommend a change to the
frequency of vision evaluations; therefore, the MRB concurred with the
frequency of vision evaluations as proposed.
Response: FMCSA continues to find that at least annual vision
evaluations are appropriate for individuals physically qualified under
the alternative vision standard. The Vision Evaluation Report, Form
MCSA-5871,
[[Page 3398]]
asks ophthalmologists and optometrists to provide an opinion on whether
a vision evaluation is required more often than annually for the
individual evaluated. If so, they are to state how often a vision
evaluation should be required. In addition, the ME performing the
physical qualification examination may exercise medical discretion,
based on the findings of the examination and driver health history, and
require an eye evaluation more often than annually by medically
certifying the individual for less than the maximum 12-month period.
Finally, ophthalmologists, optometrists, and their professional
associations had the opportunity to submit comments on this issue in
response to the NPRM.
F. Vision Evaluation Report, Form MCSA-5871
NPRM: FMCSA proposed that an ophthalmologist or optometrist would
record the findings from the vision evaluation and provide specific
medical opinions on the Vision Evaluation Report, Form MCSA-5871. The
report would be provided to and considered by the ME in making a
qualification determination.
Comments on the Vision Evaluation Report, Form MCSA-5871: No
comments were received on the substance or format of the report. ACOEM
commented, however, that the MRB recommended in September 2015 that, if
the vision standard is changed, a form should be designed to be
completed by the ophthalmologist or optometrist that includes all the
information required by the current vision exemption program, which
could then be reviewed by the ME. Another commenter, an ME, stated
similarly that FMCSA should seek comment from professional associations
for ophthalmologists or optometrists regarding comorbid conditions,
disease processes, and any other additional helpful information.
MRB Task 21-1 Report: In the first of five recommendations for the
Vision Evaluation Report, Form MCSA-5871, the MRB recommended that the
physical qualification standards for the alternative vision standard
(modified to reflect a field of vision of at least 120 degrees) be
added to page 1 after FMCSA's definition of monocular vision as
information for the ophthalmologist or optometrist.
The second recommendation was to expand the medical opinion for
question 12, regarding sufficient time to adapt and compensate for the
change in vision, to require that the individual can drive a CMV safely
with the vision condition. The MRB noted that the medical opinion
regarding whether the individual has adapted to and compensated for the
change in vision sufficiently encompasses depth perception. The MRB
further noted that question 12 sufficiently implies that time is needed
to adapt and compensate for the change in vision, but appropriately
relies on the ophthalmologist or optometrist conducting the vision
evaluation to determine the appropriate period of time on a case-by-
case basis.
The remainder of the MRB recommendations, three through five,
concerned the order of questions and the necessity of certain
questions. The MRB recommended the information about stability in
questions 11 (vision deficiency) and 13 (progressive eye conditions) be
retained because the questions solicit different information. The MRB
recommended the Agency change the order of the requested information to
be questions 1 through 9, 10, 12, 13, and then 11. This would place the
question concerning stability of the vision deficiency (question 11)
after the question about progressive eye diseases (question 13).
Finally, the MRB recommended the Agency not request information on the
report relating to severe non-proliferative diabetic retinopathy and
proliferative diabetic retinopathy because they are evaluated
separately under the standard for insulin-treated diabetes mellitus.
Response: With respect to ACOEM and the ME's comments to the NPRM,
FMCSA followed the MRB's September 2015 recommendations and developed a
form for ophthalmologists and optometrists to complete that is provided
to MEs. The Vision Evaluation Report, Form MCSA-5871, is based on the
September 2015 recommendations and information obtained in the current
vision exemption program. It includes requests for information about
progressive eye conditions. A summary of the proposed report was
included in the NPRM, and a draft of the report was available in the
rulemaking docket. The NPRM afforded the opportunity for all interested
parties, including eye professionals and their organizations, to
provide comment on the proposed rule and report.
The final Vision Evaluation Report, Form MCSA-5871, includes the
alternative vision standards on page 1 as requested by the MRB.
However, FMCSA does not modify the vision standards to reflect a field
of vision of at least 120 degrees for the reasons discussed below.
FMCSA agrees with the MRB that reordering the medical opinions and
information about progressive eye conditions improves the report.
Accordingly, FMCSA inserts the question about progressive eye
conditions before the medical opinions. That move consolidates all the
vision information before the medical opinions are provided. Question
11, which provides the medical opinion concerning whether the vision
deficiency is stable, follows the question about progressive eye
conditions as the MRB recommended. FMCSA does not place the medical
opinion about stability of the vision deficiency after the other
medical opinions, however. The alternative vision standard requires
that the vision deficiency must be stable first, and then there must be
time to adapt and compensate for the vision change. As recommended,
FMCSA expands question 12, regarding adapting to and compensating for
the vision deficiency, to include that the individual can drive the CMV
safely.
FMCSA agrees with the MRB's recommendation and rationale regarding
not to include questions concerning severe non-proliferative and
proliferative diabetic retinopathy on the report. These conditions are
covered by the separate standard for insulin-treated diabetes mellitus.
The final Vision Evaluation Report, Form MCSA-5871, is available in
the docket for this rulemaking. The Agency invites public comment on
the report under the Paperwork Reduction Act as provided in the
information collection, titled ``Medical Qualification Requirements,''
discussed in section X.F. below. Comments should be submitted to OIRA
at OMB as provided in the ADDRESSES section above.
G. The Role of MEs
NPRM: FMCSA proposed that, at least annually, but no later than 45
days after an ophthalmologist or optometrist signs and dates the Vision
Evaluation Report, Form MCSA-5871, an ME would conduct a physical
qualification examination and determine whether the individual meets
the alternative vision standard, as well as the other physical
qualification standards.
Comments on the Role of MEs: A commenter stated one safeguard in
the alternative vision standard is that determinations regarding
whether an individual can operate a CMV safely will be made by an ME, a
licensed healthcare professional, instead of an FMCSA employee. In
contrast, ACOEM stated the proposed standard would shift considerable
responsibility to the ME who may not have the training or experience to
adequately assess the vision deficiency. An ME commented that the ME
would refuse to examine
[[Page 3399]]
any drivers who fall within the proposed alternative vision standard
``for the sake of the driving public and as a personal liability
concern.''
MRB Task 21-1 Report: The MRB did not recommend a change with
respect to the role of the ME in the proposed alternative vision
standard; therefore, the MRB concurred with the role of the ME as
proposed.
Response: FMCSA disagrees that under the alternative vision
standard more responsibility or liability is shifted to MEs for which
they are not trained or have experience. FMCSA has determined that MEs
are qualified to perform their role in this collaborative medical
certification process and to perform physical qualification
examinations on all individuals, including those with vision
deficiencies. The role of the ophthalmologist or optometrist is to
provide relevant information and medical opinions regarding the
individual's vision status to assist the ME to determine whether the
individual meets the alternative vision standard. The role and
responsibility of the ME, who is licensed by a State authority to
perform physical examinations and is trained in FMCSA's physical
qualification standards and the demands of operating a CMV, is to
exercise independent medical judgment to medically certify that the
individual can safely operate a CMV. The ME's role with the alternative
vision standard is consistent with current practice for any medical
condition for which the ME considers additional information to reach a
medical certification determination.
MEs have proven experience making medical certification
determinations. This approach of MEs making the physical qualification
determination is consistent with Congress' directive in 49 U.S.C.
31149(d) for trained and certified MEs to determine the individual's
physical qualification to operate a CMV.
If an ME determines that additional information is necessary to
make the certification determination, the ME could confer with the
ophthalmologist or the optometrist for more information on the
individual's vision medical history and current status, make requests
for other appropriate referrals, or request medical records from the
individual's treating provider, all with the appropriate consent. MEs
routinely confer with and obtain opinions from treating providers
concerning the stability of individuals' underlying medical conditions
and how the medical conditions may impact safety.
H. Frequency of Physical Qualification Examinations and Maximum Period
of Certification
NPRM: FMCSA proposed that individuals medically certified under the
alternative vision standard have physical qualification examinations at
least every 12 months and be medically certified for a maximum period
of 12 months.
Comments on the Frequency of Physical Qualification Examinations
and Maximum Period of Certification: A commenter stated the 12-month
maximum certification period is a safeguard that ensures an individual
will be re-evaluated in a year to determine continued eligibility for
CMV driving. One commenter, an ME, stated that the MRB recommended
certification for 1 year if FMCSA develops an alternative vision
standard. Another commenter who also is an ME noted that FMCSA issues
vision exemptions for 2 years. The commenter asked if individuals
designated as legally blind could be medically certified for 2 years
because their vision is not going to change.
MRB Task 21-1 Report: The MRB did not recommend a change with
respect to the frequency of physical qualification examinations or
maximum period of certification; therefore, the MRB concurred with the
requirement for physical qualification examinations at least every 12
months and certification for a maximum of 12 months.
Response: FMCSA continues to find it appropriate for individuals
medically certified under the alternative vision standard to have
physical qualification examinations at least every 12 months and to be
medically certified for a maximum of 12 months. The Agency agrees with
the first commenter cited above that the 12-month maximum certification
period is a safeguard that allows for early detection and consideration
of conditions that may impact an individual's ability to safely operate
a CMV.
FMCSA continues to conclude, as stated in the NPRM, that even
individuals who have a non-functional eye or have lost an eye must
undergo vision evaluations at least annually. It is important to
monitor compliance with the vision standard in the unaffected eye
because of the potential for vision changes in that eye (86 FR 2358).
Accordingly, at least annual physical qualification examinations are
appropriate for individuals designated as legally blind in one eye.
Although Federal vision exemptions are issued for 2 years, individuals
undergo a vision evaluation and a physical qualification examination at
least annually. The maximum certification period is 12 months for an
individual with a vision exemption. Thus, the approach in the
alternative vision standard is consistent with the vision exemption
program.
If an ME determines an individual merits closer monitoring, the ME
may certify the individual for less than the maximum 12-month period.
This approach allows the ME to exercise medical discretion as necessary
in making individualized medical certification determinations.
I. Individuals Eligible for the Alternative Vision Standard
NPRM: FMCSA proposed that the physical qualification standard for
vision would be satisfied if an individual meets the requirements of
the existing vision standard or the requirements of the alternative
vision standard in Sec. 391.44. Section 391.44 proposed an alternative
vision standard for an individual ``who cannot satisfy either the
distant visual acuity or field of vision standard, or both,'' in the
existing vision standard in one eye. On the Vision Evaluation Report,
Form MCSA-5871, FMCSA defined monocular vision ``as (1) in the better
eye, distant visual acuity of at least 20/40 (with or without
corrective lenses) and field of vision of at least 70 degrees in the
horizontal meridian, and (2) in the worse eye, either distant visual
acuity of less than 20/40 (with or without corrective lenses) or field
of vision of less than 70 degrees in the horizontal meridian, or
both.''
Comments on Individuals Eligible for the Alternative Vision
Standard: ACOEM stated that the proposed alternative vision standard
goes beyond the scope of the current vision exemption program. ACOEM
commented that the current exemption program is only applicable to
drivers whose best corrected vision in their worse eye prevents them
from meeting the vision standard. The proposed alternative vision
standard, however, seems to allow any driver to meet the vision
standard if vision in one eye is at least 20/40 with or without
corrective lenses. This would permit a driver who chooses not to obtain
corrective lenses to use the proposed standard if the driver's vision
in the better eye meets the existing vision standard. ACOEM continued,
``True monocular vision is defined by medical professionals as vision
with only one eye whether it be due to functional loss or physical loss
of the eye.'' However, the alternative vision standard would apply to a
driver who simply does not meet the existing visual acuity requirements
and does not
[[Page 3400]]
specify whether due to a long-term condition, surgery, or just normal
vision changes. Concentra made a similar comment. Both ACOEM and
Concentra commented that the proposed alternative vision standard would
permit having one eye corrected to distant vision and the other
corrected for near vision.
MRB Task 21-1 Report: The MRB did not recommend a change with
respect to eligibility for the alternative vision standard; therefore,
the MRB concurred with the alternative standard as proposed in this
regard.
Response: FMCSA clarifies in this final rule that only individuals
who do not satisfy, with the worse eye, either the distant visual
acuity standard with corrective lenses or the field of vision standard,
or both, in the existing vision standard are eligible to be physically
qualified under the alternative vision standard. FMCSA changes the
regulatory text and definition of monocular vision on the Vision
Evaluation Report, Form MCSA-5871, accordingly. Individuals who choose
not to obtain corrective lenses for the worse eye when the better eye
meets the existing vision standard must not be physically qualified
under Sec. 391.44. It was not the Agency's intent to change the scope
of the current vision exemption program in this regard or to allow
individuals who simply need corrective lenses to be physically
qualified under the alternative vision standard. The Agency elects to
optimize overall safety on our roadways by requiring individuals to
satisfy the existing vision standard when they are able to do so with
the use of corrective lenses. Moreover, FMCSA assumes that individuals
will make the rational decision to improve their vision if it is less
burdensome than incurring the additional expense of annual eye
evaluations and physical qualification examinations.
The alternative vision standard is not an option for an individual
who can meet the existing vision standard with correction. The Vision
Evaluation Report, Form MCSA-5871, specifically questions whether the
individual has corrected or uncorrected vision, and whether the
correction is by glasses or contacts. An ME who receives and reviews a
Vision Evaluation Report, Form MCSA-5871, and detects the individual in
each eye meets the minimum visual acuity standard of 20/40 with
correction, has a field of vision of 70 degrees, and is able to
recognize the standard red, green, and amber traffic control signal
colors, should inform the individual that medical certification under
the alternative vision standard is not applicable.
Under FMCSA's existing vision standard, it is permissible for an
individual to have one eye corrected to distant vision and the other
corrected for near vision if each eye meets the existing visual acuity
standard. If one eye does not meet the visual acuity standard, the
individual must obtain and wear corrective lenses that enable the
individual to satisfy the visual acuity standard in each eye while
operating a CMV.
J. Acceptable Field of Vision
NPRM: FMCSA proposed that an individual must have, in the better
eye, field of vision of at least 70 degrees in the horizontal meridian
to be physically qualified under the alternative vision standard. The
Agency stated in the NPRM that it was ``not proposing changes to the
current vision standard found in Sec. 391.41(b)(10)'' (86 FR 2358).
Comments on Acceptable Field of Vision: Dr. Morris, a board-
certified retina surgeon and ophthalmologist, encouraged FMCSA,
``without any reservation,'' to adopt the alternative vision standard
as proposed. Dr. Morris indicated that if an individual meets the
proposed vision standard there will be no adverse impact on safety due
to the individual's vision, and that the loss of vision is not likely
to play a significant role in whether the individual can drive a CMV
safely. A commenter, who holds a Federal vision exemption, stated that
when an individual has reduced vision in one eye the peripheral field
sharpens over time. Another commenter also noted an improvement in the
field of vision due to compensation when compared to before the vision
loss.
Concentra and ACOEM commented that the existing vision standard
considers 70 degrees in the horizontal meridian in each eye to be
sufficient; however, normal field of vision is twice that, i.e., 50
degrees nasally and 90 degrees temporally for a total of 140 degrees.
Concentra noted pilots are required to have normal field of vision. It
recommended that 120 degrees bilaterally be considered the minimum
acceptable standard for Sec. 391.41, and that drivers not meeting that
standard should be disqualified. Concentra continued that ``Depending
on the cause of the vision deficit, perhaps the driver could be
eligible for an exemption under either the current exemption program or
the proposed Sec. 391.44.'' ACOEM stated that the field of vision
standard has long been an area of controversy and that this rule would
be an appropriate time to address the field of vision standard. It
noted the MRB previously recommended that a 120-degree field of vision
be adopted.\8\
---------------------------------------------------------------------------
\8\ FMCSA Medical Review Board, Meeting Summary, Oct. 19, 2012,
available at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/October_2012_Certified_Meeting_Summary.pdf (last accessed Aug.
17, 2021).
---------------------------------------------------------------------------
Concentra provided diagrams that it states demonstrate a driver
with 70 degrees of horizontal field of vision has a markedly decreased
field of vision. Concentra continued that a ``field of vision limited
to 70 degrees is not normal vision and if detected on an examination,
is reason to have a comprehensive evaluation by a specialist.'' ACOEM
noted the proposed rule would allow a quarter of a normal visual field
to meet the standard. Both Concentra and ACOEM commented than any
discussion of field of vision should specify if it is from nasal,
temporal, or total.
A commenter stated that FMCSA needs to seek comment from eye
specialists and professional associations regarding field of vision
criteria, which is not supposed to be 70 degrees as stated in the
existing vision standard.
MRB Task 21-1 Report: The MRB recommended that the field of vision
requirement be changed from 70 degrees to 120 degrees for the
alternative vision standard.
Comments on MRB Task 21-1 Report: The AOA supported the MRB's
recommendation. The AOA commented that ``Using 120 degrees in the
horizontal meridian as a requirement would create greater consistency
with recognized driving standards.'' ATA noted Concentra and Dr. Morris
supported a 120-degree field of vision instead of the proposed 70
degrees. ATA stated that it supports ``efforts to maintain a stringent
vision standard for commercial drivers and believes that the MRB
recommendation to increase the required [field of vision] and the
required evaluation from a vision specialist accomplishes this goal.''
In contrast, an ME commenter recommended keeping the 70-degree
peripheral vision requirement. A different commenter asked if there
have been any studies showing that drivers with a wider field of vision
have fewer accidents. The commenter continued ``If not, then leave
things alone,'' especially when there is no evidence that drivers with
a narrower field of vision are more dangerous on the road.
Response: The Agency has long considered 70 degrees in the
horizontal meridian in each eye to be the sufficient minimum standard
for field of vision. As stated above, the NPRM did not propose changes
to the field of vision requirement for the existing vision
[[Page 3401]]
standard. Accordingly, the comments recommending changes to the
existing vision standard are out of the scope of this rulemaking and
will not be addressed here.
Dr. Morris concluded, as has FMCSA, that if an individual meets the
proposed vision standard there will be no adverse impact on safety due
to the individual's vision. Contrary to ATA's interpretation, Dr.
Morris did not support a 120-degree field of vision for the alternative
vision standard. Dr. Morris noted only that his patient has field of
vision of 120 degrees in the horizontal meridian.
The alternative vision standard adopts the major vision criteria of
the current Federal vision exemption program, which were also used in
the preceding Federal vision waiver study program since the early
1990s. Under the current vision exemption program, FMCSA considers
exemptions for those individuals who have a field of vision of at least
70 degrees in the horizontal meridian in the better eye. An
ophthalmologist or optometrist must conduct formal perimetry to assess
the field of vision of each eye, including central and peripheral
fields, utilizing a testing modality that tests to at least 120 degrees
in the horizontal meridian. The ophthalmologist or optometrist must
submit the formal perimetry for each eye and interpret the results in
degrees of field of vision. The Vision Evaluation Report, Form MCSA-
5871, includes the same requirements for testing and formal perimetry.
The report also requires a medical opinion from the ophthalmologist or
optometrist regarding whether the individual has adapted to and
compensated for the change in vision and can drive a CMV safely.
Commenters did not provide in response to the NPRM or NOA any new
data that shows drivers with a horizontal field of vision of 70 degrees
in the better eye are less safe than drivers with a field of vision of
120 degrees. The Agency has nearly 30 years of experience with drivers
who have been physically qualified under the vision waiver study and
the exemption programs with a field of vision of at least 70 degrees.
Based on that experience, which has not revealed concerns regarding a
horizontal field of vision of 70 degrees in the better eye, FMCSA has
determined that individuals who meet the alternative vision standard
will be at least as safe as the general population of CMV drivers.
K. Meaning of Stable Vision
NPRM: FMCSA proposed that an individual is not physically qualified
under the alternative vision standard to operate a CMV ``if the
individual's vision deficiency is not stable.'' FMCSA did not propose a
definition for what constitutes stable vision.
Comments on the Meaning of Stable Vision: Concentra commented that
the ``term `stable' is too broad and is guaranteed to cause controversy
and confusion.'' Similarly, ACOEM asked how stable would be defined.
ACOEM also asked if a modest change in vision in the worse eye over a
5- to 10-year period would be considered stable. Concentra asked FMCSA
to consider the driver who needs new corrective lenses every 2 to 3
years to even reach 20/40 in the worse eye. Concentra and ACOEM both
asked if any progressive eye diseases should ever be considered stable.
They commented that, not only will eye care professionals have
different opinions on stability, but many MEs will not have sufficient
knowledge of vision disorders to evaluate whether an eye disorder is
stable or progressive. They stated that removing the 3-year driving
experience requirement will only amplify this issue.
MRB Task 21-1 Report: The MRB did not recommend a change with
respect to the meaning of stable vision; therefore, the MRB concurred
with the alternative vision standard in this regard. As noted above
with respect to the Vision Evaluation Report, Form MCSA-5871, the MRB
recommended the questions about stability of the vision deficiency and
progressive eye conditions be retained because the questions solicit
different information.
Comment on the MRB Task 21-1 Report: The AOA stated the MRB noted
that the medical opinion provided by the ophthalmologist or optometrist
must be respected regarding whether the individual has stable vision
deficiency.
Response: FMCSA declines to incorporate a specific definition of
stable vision in the final rule that applies to all individuals who are
physically qualified under the alternative vision standard. Instead,
ophthalmologists and optometrists who are trained to evaluate vision
and know what constitutes stable vision are to provide medical opinions
regarding when an individual's vision is stable.
However, FMCSA changes the Vision Evaluation Report, Form MCSA-
5871, by adding a question after the ophthalmologist or optometrist
provides an opinion regarding whether the individual's vision
deficiency is stable. It asks, ``If yes, when did the vision deficiency
become stable?'' With respect to progressive eye conditions, FMCSA also
adds a request for additional information if the condition is not
stable. These changes provide additional information for the ME to
independently assess whether the individual's vision is stable.
Determining when vision is stable requires an individualized
assessment. Many variables, such as the nature, severity, and duration
of the underlying medical condition or vision deficiency, treatment,
and response to treatment, influence when an ophthalmologist or
optometrist deems vision to be stable for both progressive and fixed
vision deficiencies. Therefore, the Agency finds that whether an
individual has stable vision is a clinical rather than a regulatory
determination and most appropriately defined for the individual by
healthcare professionals.
FMCSA does not expect MEs will make unassisted or uninformed vision
qualification determinations, as indicated by commenters. The
alternative vision standard emphasizes the separate but collaborative
roles of ophthalmologists or optometrists and MEs in the medical
certification process. Specifically, the ophthalmologist or the
optometrist performs a vision evaluation and completes the required
Vision Evaluation Report, Form MCSA-5871, based on the clinical
findings of the evaluation of the individual and knowledge of the
individual's medical history. The report provides the relevant
information and medical opinions for the ME to consider when making the
final physical qualification determination. The MRB did not state that
the medical opinions provided by ophthalmologists and optometrists must
be respected. FMCSA emphasizes that the final determination rests with
the ME regarding whether the individual meets the alternative vision
standard.
L. Elimination of the Exemption Program's 3-Year Driving Experience
Criterion
NPRM: FMCSA stated the 3 years of intrastate driving experience
with the vision deficiency criterion in the vision exemption program
has been equated to sufficient time for the driver to adapt to and
compensate for the change in vision. Rather than continuing the
criterion, FMCSA proposed for the alternative vision standard that an
individual is not physically qualified to operate a CMV ``if there has
not been sufficient time to allow the individual to adapt to and
compensate for the change in vision.'' FMCSA did not propose a minimum
period for the time to adapt to and compensate for the change in
vision. Instead, the medical professionals would determine when an
individual has adapted to and compensated for a change in vision
[[Page 3402]]
based on an individualized assessment of all the relevant factors. As
an alternative to the driving experience criterion, FMCSA proposed that
individuals physically qualified for the first time ever under the
alternative vision standard must satisfactorily complete a road test
before operating in interstate commerce, with limited exceptions.
Comments on Elimination of the Exemption Program's 3-Year Driving
Experience Criterion: Dr. Morris, a board-certified retina surgeon and
ophthalmologist, encouraged that the alternative vision standard be
adopted as proposed. Dr. Morris stated, ``As a retina surgeon, it is
well recognized in medical journals that individuals who have
experienced a vision loss in one eye can and usually develop
compensatory viewing behavior to mitigate the vision loss. My
experience in treating patients with the loss of vision in one eye is
that these individuals, over time, are not limited by their lack of
binocularity with respect to driving once they have adapted to and
compensated for the change in vision.''
OOIDA stated the prolonged period of required intrastate driving
can discourage drivers from staying in the industry. OOIDA commented
that the alternative vision standard ``ensures sufficient physical
qualifications are met, but also establishes a more practical process
that will help safe drivers continue to operate in the trucking
industry.''
A commenter noted that not adopting the alternative vision standard
would prolong the process for previously qualified interstate CMV
drivers who are no longer able to meet the existing vision standard to
return to driving. The commenter also stated the rule would reduce
barriers of entry. Another commenter supported the alternative vision
standard but emphasized that adequate depth perception is key to
avoiding collisions. The commenter continued that under the new
standard an individual's depth perception should be assessed first and
foremost.
ATA stated it strongly opposed replacing the vision exemption
program's criterion of 3 years of driving experience with the road test
required in Sec. 391.31. ATA strongly objected to FMCSA's use of
vision exemption program data without factoring in the safety
implications of removing essential safeguards of the program. ATA also
strongly disagreed with FMCSA's assessment that, by eliminating the
intrastate CMV experience requirement and replacing it with the
mandated road test in Sec. 391.31, the alternative vision standard
could increase the number of drivers entering the industry without
adversely impacting safety. ATA stated that, regardless of age, years
of experience consistently equates to lower rates of crashes, crash
involvements, and moving violations, which are factors that were
overlooked in the NPRM.
ACOEM commented that the ``current requirement for 3 years of
commercial driving experience with the vision deficiency would allow
the individual with a vision impairment a period of time under which
they could adjust to the vision deficit.'' ACOEM and Concentra stated
that a simple road test is insufficient evaluation for drivers lacking
experience operating CMVs. They stated further that the ``presently
available data regarding the safety of drivers with monocular vision is
inconclusive.'' They referred to statements in the NPRM that noted
crash data on drivers with monocular vision is sparse and conflicting,
and cautioned on interpreting data because ``monocular vision'' is
defined differently in the literature. ACOEM and Concentra concluded
that these observations ``actually support maintaining the requirement
for experience over a road test.''
One commenter who is an ME stated FMCSA should retain the 3-year
driving experience criterion. Another commenter stated the 3-year
driving experience criterion should be kept as a minimum, but that time
should be compared with ME reports and driving logs and records for
increased safety. A different commenter stated that the 3 years of
driving experience does a better job of proving that an individual can
safely operate a vehicle than a simple test would.
Another commenter, who noted a modification of the existing
standard is needed, stated a one-time test may not be sufficient to
balance road safety, but that does not necessarily imply that the
current 3-year driving criterion should stay in place. The commenter
continued that the alternative vision standard must take into account a
reasonable standard time period for individuals to demonstrate their
abilities.
ATA, ACOEM, and Concentra commented generally that establishing an
alternative vision standard contradicts the MRB's advice, which they
stated consistently supported continuing the existing vision standards
and current exemption program. It was noted that the MRB raised
concerns that data suggest drivers who suffer traumatic eye loss often
need time to adjust to their condition and recommended that FMCSA seek
comment from eye specialists on the minimum amount of time for
individuals to return to CMV driving after a sudden change in binocular
vision. The commenters also stated the MRB recommended that FMCSA
should investigate whether the 3-year driving experience criterion
could be shortened.
ATA stated, while the alternative standard includes a requirement
that individuals are not physically qualified to operate a CMV if there
has not been sufficient time to allow the individual to adapt to and
compensate for the change in vision, the requirement does not entirely
address the MRB's recommendation that a period of adjustment is
necessary after a sudden loss of vision. ATA stated further that the
NPRM fails to sufficiently address why the Agency moved forward with a
revision against the MRB's support to maintain the status quo.
MRB Task 21-1 Report: The MRB stated generally that with respect to
the medical aspects of the proposed alternative vision standard, if the
MRB did not make a specific recommendation to change a provision, the
MRB concurred with the provision as proposed in the January 2021 NPRM.
``The MRB agree[d] that the requirement for sufficient time to adapt to
and compensate for the vision deficiency should not be changed in the
proposed alternative vision standard. The MRB note[d] it [did] not have
sufficient data to establish a specific waiting period for an
individual who has a new vision deficiency.''
With respect to the Vision Evaluation Report, Form MCSA-5871, the
MRB noted that ``the medical opinion provided by the ophthalmologist or
optometrist regarding whether the individual has adapted to and
compensated for the change in vision sufficiently encompasses depth
perception.'' The MRB continued that the requested medical opinion
``sufficiently implies that time is needed to adapt and compensate for
the change in vision but appropriately relies on the ophthalmologist or
optometrist conducting the vision evaluation to determine the
appropriate period of time on a case-by-case basis.'' The MRB
recommended, however, that FMCSA expand the medical opinion ``to
require that the individual can drive a CMV safely with the vision
condition.''
Comments on MRB Task 21-1 Report: The AOA commented that it
supports the MRB's recommendation that the ophthalmologist or
optometrist conducting the vision evaluation should ``independently
determine'' the appropriate period needed to adapt on a case-by-case
basis. It also stated that
[[Page 3403]]
the MRB noted the medical opinions provided by the ophthalmologist or
optometrist ``must be respected'' regarding whether the individual has
adapted to and compensated for the change in vision. Finally, the AOA
commented that considerations may come into play when determining
vision issues that can hinder driving beyond monocular Snellen visual
acuity, horizontal visual fields, and color testing, which include
inferior, superior, and central field visual assessment; contrast
sensitivity assessment; visual processing assessments; and eye and
systemic disease assessments.
ATA commented that it understands it is difficult to establish a
standardized waiting period for adjustment. Nevertheless, ATA expressed
concern ``that without any guidance, there will be an inconsistency in
the certification of a driver depending on the judgement of his or her
optometrist, ophthalmologist, or medical examiner.'' ATA stated FMCSA
``should seek to gather more data and establish clearer guidance on
when a medical examiner can assure that a driver has sufficiently
adapted to their vision deficiency.''
Response: FMCSA has fully factored in the safety implications of
not continuing the 3 years of intrastate driving experience criterion
in the alternative vision standard. FMCSA continues to find that once
an individual has adapted to and compensated for the loss of vision in
one eye the individual has the visual capacity to operate a CMV safely.
While most drivers benefit from practice and experience, the Agency
finds there is no persuasive evidence that supports continuing to hold
individuals physically qualified under the alternative vision standard
to the higher standard of driving in intrastate commerce after they
have adapted to and compensated for the vision loss. The alternative
vision standard with its collaborative physical qualification approach
and one-time road test ensures drivers are visually capable of driving
a CMV safely before they operate a CMV in interstate commerce.
As stated in the NPRM, and affirmed by Dr. Morris, it is well
recognized in the medical literature that individuals with vision loss
in one eye can and do develop compensatory viewing behavior to mitigate
the vision loss. The 30 years of experience with the vision waiver
study and exemption programs has shown that individuals with vision
loss in one eye are not limited by their lack of binocularity with
respect to driving once they have adapted to and compensated for the
change in vision. Dr. Morris has had similar experience with drivers
with vision loss in one eye.
The medical literature also shows the time needed to adapt to and
compensate for the loss of vision in one eye varies. FMCSA noted in the
NPRM that when the criterion was selected in the 1990s the medical
community indicated it can take several months to a full year to
compensate for a vision impairment (86 FR 2356). FMCSA cited a 2002
study that found the time to adapt to sudden vision loss was 8.8 months
and to adapt to gradual vision loss was 3.6 months (86 FR 2357). Thus,
the 3 years of intrastate driving experience criterion far exceeds the
findings of the medical community that it can take up to a year to
adapt to and compensate for vision loss in one eye. In the alternative
vision standard, the additional time after a vision deficiency becomes
stable provides the period of adjustment needed to adapt to and
compensate for the vision loss.
It is no longer necessary to discuss the previous MRB
recommendations because it has made new recommendations. In MRB Task
21-1 Report, the MRB accepted moving ahead with the alternative vision
standard without the 3 years of driving experience criterion. The MRB
agreed with FMCSA's approach of not requiring a minimum period to adapt
to and compensate for the loss of vision in one eye. The MRB indicated
the time varies by individual and stated it did not have data to
establish a specific waiting period. Thus, as the MRB stated, the
alternative vision standard ``appropriately relies'' on the
ophthalmologist or optometrist conducting the vision evaluation, which
includes a thorough evaluation of depth perception, to determine on a
case-by-case basis when an individual has adapted to and compensated
for the loss of vision in one eye. It is therefore appropriate that
there be inconsistency in the time intervals it takes to adapt to and
compensate for the loss of vision in one eye. Because the time needed
to adapt to and compensate for a loss of vision is highly dependent on
individual factors, gathering more data and attempting to establish
clearer guidance is not necessary or feasible.
FMCSA finds a change to the alternative vision standard
requirements will help to clarify that there must be a period for the
individual to adapt to and compensate for the vision loss after the
vision deficiency is deemed stable by a medical professional.
Accordingly, FMCSA changes Sec. 391.44(c)(2)(iv) to read, ``The
individual is not physically qualified to operate a commercial motor
vehicle if sufficient time has not passed since the vision deficiency
became stable to allow the individual to adapt to and compensate for
the change in vision.'' FMCSA also makes conforming changes in the
Vision Evaluation Report, Form MCSA-5871, to the medical opinion
regarding whether the individual has adapted to and compensated for the
change in vision.
In response to the AOA comments that it supports the
ophthalmologist or optometrist ``independently determining'' the
appropriate period of time needed to adapt and that such a
determination ``must be respected,'' FMCSA clarifies that the MRB noted
only that question 12 sufficiently implies that time is needed to adapt
to and compensate for the change in vision. FMCSA does not expect the
ophthalmologist or optometrist conducting the vision evaluation to
independently determine the appropriate period of time to adapt to or
compensate for the vision loss or to determine whether an individual
meets the relevant standard. Rather, as the MRB indicated, it expects
the ME to appropriately rely on all the information provided by the
ophthalmologist or optometrist to make the final determination of
whether the individual meets the alternative vision standard and should
be physically qualified.
FMCSA further revises question 12 to incorporate the MRB's
recommendation to expand the medical opinion provided by the
ophthalmologist or optometrist to require that the individual can drive
a CMV safely with the vision condition. FMCSA also adds a request in
the report to provide the month and year the vision deficiency became
stable. The additional information could assist MEs to evaluate whether
the period over which the individual adapted to and compensated for the
change in vision seems reasonable.
The Vision Evaluation Report, Form MCSA-5871, requests the
information MEs need to determine whether an individual meets the
alternative vision standard. The specific requirements of the
alternative vision standard are provided on the report for the
informational awareness of ophthalmologists and optometrists conducting
the vision evaluations. While there may be multiple ways to evaluate
vision, FMCSA expects ophthalmologists and optometrists to provide the
information as requested on the report, which requires an evaluation of
visual acuity measured in terms of the Snellen chart and field of
vision measured in the horizontal meridian, for example.
Comments relating to the safety of drivers in the vision waiver
study and
[[Page 3404]]
exemption programs, as well as drivers with monocular vision generally,
and the data used to support this rulemaking are discussed above.
Comments relating to specific aspects of the road test are discussed
below.
M. Road Test Requirement for Alternative Vision Standard
NPRM: FMCSA proposed that, instead of requiring 3 years of
intrastate driving experience with the vision deficiency as in the
current exemption program, individuals physically qualified under the
proposed alternative vision standard for the first time would complete
a road test before operating in interstate commerce. Individuals would
be excepted from the road test requirement if they have 3 years of
intrastate or specific excepted interstate CMV driving experience with
the vision deficiency, hold a valid Federal vision exemption, or are
medically certified under 49 CFR 391.64(b). These individuals have
already demonstrated they can operate a CMV safely with the vision
deficiency. Motor carriers would conduct the road test in accordance
with the road test already required by 49 CFR 391.31.
1. Need To Separate the Physical Qualification Process From Driving
Skill
Comments on the Need to Separate the Physical Qualification Process
from Driving Skill: ATA stated it ``strongly believes FMCSA must
separate the process of evaluating an individual's skill level in
operating specific CMV equipment and physical qualification status.''
ATA stated that ``separation would help ensure certified medical
experts are the ones making medical certification determinations, and
not motor carriers.''
Response: The commenter's characterization of the process for
enabling drivers with a vision deficiency to operate a CMV is mistaken.
The road test conducted by the employer is separate from the physical
qualification determination made by the ME. Employers are not making
the medical certification determination by conducting a road test, but
are making the same type of determination that is already required that
an employee can operate a CMV safely. As stated in the NPRM,
``individuals physically qualified under the alternative vision
standard for the first time must successfully complete a road test
before operating a CMV in interstate commerce. The road test would
demonstrate individuals are able to operate a CMV safely with the
vision deficiency'' (86 FR 2359). The individual has been physically
qualified by the ME and FMCSA expects there will be no adverse impact
on safety due to the individual's vision. However, by requiring a road
test, FMCSA takes an additional step to ensure that, even though
medically certified, the individual can operate a CMV safely. The
Agency anticipates the road test will alleviate any concerns about
employing a driver with a vision deficiency because the test provides
the opportunity to assess the driver's actual ability to operate a CMV
safely.
The road test requirement in Sec. 391.31 has been a long-standing
provision that was adopted in 1970 to promote CMV safety by ensuring
that drivers have demonstrated their skill and knowledge (35 FR 6458,
6459 (Apr. 22, 1970)). This road test requirement (or the equivalent
skills test for commercial driver's license (CDL) drivers, see 49 CFR
391.33(a)(1)) is an important aspect of the employer's obligation to
ensure that drivers they employ can operate a CMV safely, such as pre-
employment record checks (49 CFR 391.23(a) and (d)) and the annual
review of a drivers safety performance (49 CFR 391.25).
The employer, rather than the ME, is most familiar with the nature
of the operation and the type of equipment the individual will be
expected to operate, a particularly important consideration given the
substantial variety of commercial vehicles operated in the industry.
This circumstance is clearly recognized in the provisions of new Sec.
391.44(d)(1), because it requires the road test to be conducted in
accordance with the existing provisions of Sec. 391.31(b) through (g).
In particular, the road test regulation states, ``The road test must be
of sufficient duration to enable the person who gives it to evaluate
the skill of the person who takes it at handling the commercial motor
vehicle, and associated equipment, that the motor carriers intends to
assign to him/her'' (49 CFR 391.31(c)). That section goes on to specify
the minimum tasks that the employer must include in the road test, all
of which are essential aspects for safe operation of the particular CMV
to be operated by the individual.
An individual must first be physically qualified by an ME under the
alternative vision standard in Sec. 391.44. Then the next step is a
road test conducted with both the appropriate vehicle and under the
operating conditions the individual has with the vision deficiency.
This two-step process ensures that CMV operations can be performed
safely. In other words, even if an individual with the vision
deficiency is certified as physically qualified by an ME for the first
time under the alternative standard, CMV operation will not be
permitted by the individual unless and until safe operation can be
demonstrated.
2. The Road Test Requirement Creates a Burden on Motor Carriers
Comments on the Road Test Requirement Creates a Burden on Motor
Carriers: ATA commented that FMCSA's use of the road test would create
an undue burden on employers by shifting some of the responsibility of
the medical certification process from the ME to a non-medical
professional, i.e., the motor carrier. Additionally, ATA stated that
Sec. 391.31(b) requires motor carriers to ensure that road test
evaluators are competent to evaluate and determine whether the
individual tested can operate the assigned CMV. ATA continued that most
road test evaluators are not medical professionals trained to evaluate
and identify factors in which an individual's vision deficiency would
impact the ability to operate a CMV; therefore, FMCSA's proposal would
place an undue burden on motor carriers.
ACOEM stated the alternative vision standard shifts responsibility
to the employer, who would be responsible for conducting a road test,
which could result in inconsistent standards for assessing driver
safety. In addition, ACOEM stated there is a concern the number of
employer-required road tests will increase significantly. Concentra
also commented that the alternative vision standard shifts
responsibility to the employer for performing a road test.
In contrast, several commenters supported the inclusion of the road
test as part of the alternative vision standard. For example, three
commenters stated the road test is an additional safeguard that ensures
a driver operating under the alternative vision standard can physically
drive the CMV safely and a much more secure driver verification.
Another commenter who has held a Federal vision exemption stated that a
driving test would tell as much about the ability to drive safely ``as
a bunch of vision tests.''
Response: FMCSA agrees with the commenters who stated the road test
is another safeguard to ensure individuals with a vision deficiency can
operate a CMV safely. As explained in the previous response, the road
test is not part of the physical qualification determination, but an
important additional requirement to ensure that the employer is
satisfied that the individual qualified under the alternative standard
can operate a CMV safely under the conditions involved in the
operation. An employer should not consider an opportunity to verify the
[[Page 3405]]
ability of a CMV driver it employs to operate safely to be an undue
burden. Employers are already under an obligation to ensure compliance
by CMV drivers with other safety regulations as well (see 49 CFR 390.11
and 392.1(a)).
FMCSA disagrees that road test examiners lack the skills necessary
to evaluate the operation of a CMV by an individual with a vision
deficiency. The road test examiners required by Sec. 391.31(b) must be
able ``to evaluate and determine whether the person who takes the test
has demonstrated that he/she is capable of operating the commercial
motor vehicle.'' Observation by the road test examiner of the specific
minimum operational tasks specified in Sec. 391.31(c) (as well as any
additional tasks included because of the type of CMV to be operated)
does not require any specialized knowledge about the vision deficiency.
The road test examiner should observe and evaluate activities involved
in operation of a CMV in the same manner for all drivers requiring a
road test.
As for ACOEM's concerns about the number of road tests increasing
``significantly,'' FMCSA does not find this will be the case. Drivers
who have an appropriate level of experience operating a CMV with the
vision deficiency are excepted from the road test, as provided in new
Sec. 391.44(d)(3) through (5). FMCSA uses a high estimate of 868
drivers who would be required to take the road test each year under the
new alternative vision standard. The cost for each road test is
estimated to be about $50.77, for a total annual cost of $44,000,\9\ in
addition to the costs of road tests already required. This is clearly
not a financial or administrative burden on either any motor carrier
required to administer a road test or the industry as a whole. The
alternative vision standard offers an opportunity for CMV drivers
unable to obtain a vision exemption to become qualified to operate a
CMV in interstate commerce. The benefits, at a minimal cost, to the
carriers and the industry of additions to the pool of CMV drivers are
clear.
---------------------------------------------------------------------------
\9\ See Section X.A. of the Regulatory Analyses below for a full
description of how these estimates are calculated.
---------------------------------------------------------------------------
3. Road Test Creates Employer Conflicts of Interest
Comments on the Road Test Creates Employer Conflicts of Interest:
ATA stated the road test could create conflicts of interest if a motor
carrier has a financial interest in permitting the evaluated individual
to work or a personal relationship with the individual. ACOEM commented
that ``some carriers, especially smaller ones, may be more lenient on
the passing criteria of the road test.'' Another commenter noted motor
carriers have a self-interest in making sure drivers pass the road test
and many make the road test simple with a limited number of ways it can
be failed.
Response: FMCSA recognizes the potential existence of conflicts of
interest in having an employer administer a road test to employees but
finds the existence of such conflicts to be unlikely. Also, the
potential for such conflicts is not unique to drivers physically
qualified under the alternative vision standard but is possible with
respect to all drivers tested. However, the governing regulation
includes particular requirements to mitigate such conflicts, such as
specifying the type of vehicle to be used and the tasks to be included
(49 CFR 391.31(c)). It also precludes an owner-operator (i.e., a person
who is both a motor carrier and a driver) from self-administering the
road test (49 CFR 391.31(b)). The certificate required to be issued by
the road test examiner is subject to the requirement that it not be
fraudulent or intentionally false (49 CFR 390.35) and includes an
affirmative statement from the road test examiner that the individual
tested can operate safely (49 CFR 391.31(f)). Most importantly,
employers have a strong financial interest in ensuring the safety of
their operations by engaging drivers, including those physically
qualified with a vision deficiency under the alternative standard, who
are able to operate safely.
4. Sufficiency of the Road Test
Comments on the Sufficiency of the Road Test: Concentra and ACOEM
commented that the road test as outlined in Sec. 391.31 is fairly
minimal. It only requires demonstrating use of the CMV controls,
turning, operating in traffic, and pre- and post-trip duties. There is
no requirement for evaluating safe operation in conditions of darkness,
inclement weather, or complex multisensory environments, such as
congested traffic and construction zones, where a vision deficiency may
be detrimental. According to Concentra and ACOEM, the road test also is
not specific to a vehicle. They stated a simple road test cannot
substitute for drivers lacking experience operating CMVs. ACOEM stated
that having employers conduct the road test could result in
inconsistent standards for assessing driver safety.
Similarly, ATA stated that a road test is an inadequate method to
determine if an individual's vision deficiency will impact driving
ability. ATA noted the driving environment would vary significantly
among carriers and would not be a consistent evaluation tool.
Two commenters were generally supportive of the alternative vision
standard as a way of opening the door for more job opportunities.
However, one of the commenters stated that a single driving test may be
too lenient to evaluate the full scope of driving capabilities. The
commenter continued that it might be in the public interest to revise
the proposed rule to scrutinize more than the proposed driving test.
The other commenter stated that a one-time driving test may not be
sufficient because individuals know they are under observation and can
perform the one test safely.
Another commenter noted many motor carrier Sec. 391.31 road tests
are an exercise in ``check the box,'' and not a thorough test of the
driver's ability. If motor carriers are going to conduct the road
tests, the commenter stated clear road-testing standards aimed at
determining if the loss of vision is affecting the driver's abilities
and pass/fail criteria need to be provided.
Response: FMCSA finds the road test required under the alternative
vision standard will be sufficiently comprehensive to evaluate and
assess an individual's capability to operate a CMV safely. In addition,
the Agency fails to discern different considerations for administering
road tests for drivers physically qualified under the alternative
vision standard as compared to drivers who are not. After 30 years with
the vision waiver study and exemption programs, experience shows that
individuals with vision loss in one eye are not limited by their lack
of binocularity with respect to driving once they have adapted to and
compensated for the change in vision. If an individual meets the
alternative vision standard, the Agency expects there will be no
adverse impact on safety due to the individual's vision. Therefore,
employers should apply the same road test requirements to all drivers.
FMCSA disagrees with commenters that the road test outlined in
Sec. 391.31 is fairly minimal. The regulation requires demonstration
of the essential elements of operating a CMV, including driving in
traffic, passing other vehicles, turning, braking, backing, and
parking. FMCSA acknowledges employers may have somewhat different
standards for assessing driver safety; however, Sec. 391.31 ensures
all drivers demonstrate
[[Page 3406]]
the fundamental skills necessary to operate a CMV safely. As noted
above, employers have a strong financial interest in ensuring they
employ drivers who can operate a CMV safely.
As also noted above, the road test, contrary to commenters'
assertions, does require the use of the specific type of vehicle that
will be assigned to the individual to operate (see 49 CFR 391.31(c)).
In addition, the applicable regulation requires that ``The motor
carrier shall provide a road test form on which the person who gives
the test shall rate the performance of the person who takes it at each
operation or activity which is a part of the test'' (49 CFR 391.31(d)).
If the road test is completed satisfactorily, the road test examiner
must sign a certificate that states that it is the examiner's
considered opinion that the individual has ``sufficient driving skill
to operate safely'' (49 CFR 391.31(f)). The employer then retains both
the road test form and the certificate (or a copy) in the driver
qualification file required by 49 CFR 391.51, along with additional
documentation that supports a determination that the individual can
operate safely.
The road test, when required under the alternative vision standard,
is only one of multiple regulatory elements that can work together to
ensure that an individual physically qualified under the standard can
operate a CMV safely. The alternative vision standard includes the
additional safeguards of the collaborative physical qualification
process by medical professionals and limiting certification to 12
months. All in all, the road test for individuals qualified under the
alternative vision standard is one part of a comprehensive regulatory
approach to ensure safe operations of a CMV.
5. Addition of a Driver Training Requirement
Comments on the Addition of a Driver Training Requirement: One
commenter who supported the alternative vision standard stated a
driving test should show proof that an individual qualified under the
new standard can drive a CMV. However, the commenter did not agree with
a one-time road test but stated a road test every year or every couple
of years would suffice. The commenter continued that maybe there should
be specialized training for individuals seeking certification under the
alternative vision standard.
Response: FMCSA elects not to require any specialized training for
individuals physically qualified under the alternative vision standard.
The experience with the vision waiver and exemption programs has not
revealed the need for specialized training for drivers with a vision
deficiency. As stated above, experience shows that individuals with
vision loss in one eye are not limited by their lack of binocularity
with respect to driving once they have adapted to and compensated for
the change in vision. Also, the driver will be subject to periodic
review. Once a driver is hired, the employer is required to review the
driver's safety performance through the annual motor vehicle record
review (49 CFR 391.25).
N. Review of an Individual's Safety Performance
NPRM: FMCSA proposed that review of the safety performance of
individuals medically certified under the alternative vision standard
be performed by motor carriers in accordance with current regulatory
requirements applicable to all drivers.
Comments on the Review of an Individual's Safety Performance: ATA
stated it strongly opposes replacing the Agency review of an
individual's driving record, as is done in the current exemption
program, with the road test required in Sec. 391.31. ACOEM commented
that the MRB questioned in 2019 how a driver's safety record would be
adequately assessed under an alternative vision standard, given that
FMCSA reviews the driving safety record in the exemption program. ACOEM
also stated the alternative vision standard shifts responsibility to
the employer, who would be responsible for reviewing the safety record,
which could result in inconsistent standards for assessing driver
safety. Concentra made a similar comment.
Response: FMCSA does not find these comments persuasive and
continues to find that the safety performance of individuals who are
medically certified under the alternative vision standard should be
evaluated in the same manner as that of other drivers. Motor carriers
already routinely review and evaluate driving records for prospective
and current employees, including employees with Federal vision
exemptions. They must review both the motor vehicle records and the
safety performance history, which must include accident information
from previous employers for the prior 3 years when hiring a driver (49
CFR 391.23(a) and (d)). Motor carriers also must review motor vehicle
records for all drivers annually (49 CFR 391.25). There is nothing
different about evaluating a motor vehicle record for an individual
medically certified under the alternative vision standard as compared
to any other driver. Motor carriers are also required to ensure
compliance by drivers with all safety regulations (49 CFR 390.11) and
that drivers are generally qualified to drive a CMV (49 CFR 391.11).
Thus, reviewing the safety performance of individuals certified under
the alternative vision standard presents nothing new or novel for motor
carriers and does not add or change a responsibility for them.
As stated in the NPRM, the 3-year safe driving history criterion of
the prior vision waiver study and exemption programs with FMCSA's
review of the driving record has served its purpose and is no longer
necessary (see 86 FR 2356-57). Finally, the MRB's 2021 recommendations
supersede its 2019 recommendations.
O. Restricting Eligibility To Use the Alternative Vision Standard by
Vehicle Type
NPRM: FMCSA did not propose to restrict eligibility to use the
alternative vision standard based on the type of vehicle an individual
operates.
Comments on Restricting Eligibility to Use the Alternative Vision
Standard by Vehicle Type: A commenter who is an ME was ``very concerned
about changing the vision requirements.'' The commenter stated that
most of the commenter's clients do not drive large CMVs, but rather
drive delivery trucks, passenger vehicles, or emergency medical
transport vehicles, which require ``decent vision'' for parking,
maneuvering in traffic with lane changes, and driving in emergent
conditions. The commenter suggested a ``carve out'' of eligibility to
use the proposed alternative vision standard for individuals operating
certain types of vehicles.
Response: FMCSA elects not to change the alternative vision
standard based on this comment. The Agency continues to conclude that
individuals who satisfy the alternative vision standard requirements do
not create an increased risk of injury to themselves or others due to
their vision and are physically qualified to operate any type of CMV
safely. Neither the vision waiver study program nor the current
exemption program restricted participation in the program based on the
type of CMV the individual operated. Thus, the Agency has 30 years of
experience evaluating individuals driving all types of CMVs. Commenters
provided no new information or data that persuades the Agency to depart
from its conclusion that the safety performance of individuals in the
vision waiver study and the current exemption programs is at least as
good as that of
[[Page 3407]]
the general population of CMV drivers, without regard to the type of
vehicle operated. Accordingly, the Agency finds there is no available
evidence to support holding individuals physically qualified under the
alternative vision standard to a higher standard merely because of the
type of CMV they operate.
P. The Alternative Vision Standard Creates More Employment
Opportunities
NPRM: FMCSA stated in the NPRM that eliminating the prohibition on
certifying individuals who cannot meet either the current visual acuity
or field of vision standard, or both, in one eye (without an exemption)
would enable more qualified individuals to operate as interstate CMV
drivers without compromising safety. Eliminating the exemption program
criterion of 3 years of intrastate CMV driving experience with the
vision deficiency would allow individuals who live in States that do
not issue vision waivers to be physically qualified. In addition,
individuals who live in a State that issues vision waivers would be
able to begin a career as an interstate CMV driver more quickly and may
have more employment opportunities. Previously qualified interstate CMV
drivers who are no longer able to meet either the distant visual acuity
or field of vision standard, or both, in one eye would be able to
return sooner to operating interstate.
Comments on the Alternative Vision Standard Creates More Employment
Opportunities: Just over 40 percent of commenters supporting the
proposed alternative vision standard stated it will provide more job
opportunities for individuals to become interstate CMV drivers or
provide the opportunity for existing drivers to stay in the industry.
For example, OOIDA stated that, in many cases, drivers with decades of
experience without any at-fault crashes must leave the profession
because of the economic obstacles associated with the Federal vision
exemption criteria. ``The prolonged period of required intrastate
driving can discourage these drivers from staying in the industry.''
OOIDA commented that the alternative vision standard will ``reduce
barriers to entry for both active and future CMV drivers'' and ``allow
safe and experienced drivers to stay on the road.'' Another commenter
stated the alternative vision standard could allow thousands of drivers
who do not meet the existing vision standard to begin operating CMVs in
interstate commerce without the need for an exemption. A different
commenter stated the alternative vision rule allows for a larger pool
of qualified drivers without compromising safety, and noted the country
is short of drivers.
One commenter, a motor carrier, stated that the alternative vision
standard would be good for the trucking industry and not increase
danger to the public. The new standard would open the field to many
drivers who do not have or have not been able to get a vision waiver.
The commenter noted it would add two drivers with proven work ethic and
ability to the company's interstate driving pool right off. Another
commenter who is an ME has been unable to certify a few good drivers
after they did not pass the vision standard. The commenter noted that
it is difficult, particularly for local small businesses, to find
qualified CDL operators.
Another commenter stated the proposed regulation has far reaching
benefits. It would give individuals with vision that does not meet the
existing outdated vision standard the opportunity to drive CMVs. It
would boost the CMV driver industry; a boost that is needed now more
than ever due to COVID-19. The rule also has the potential to bring
greater efficiency to interstate commerce and the country in general.
According to the commenter, it stands to reason that if fewer drivers
are available it will take longer for goods to travel from place-to-
place.
Six commenters who hold intrastate waivers stated they would
benefit from being able to operate in interstate commerce. One of these
commenters noted missing many good paying loads because of the
intrastate restriction and further noted that eliminating it would
increase the commenter's income greatly. Seven commenters supported the
proposed alternative vision standard because it would either allow them
to return to work as a CMV driver following an eye injury or give them
the opportunity to become a CMV driver, which they did not have before
due to poor vision in one eye.
Several commenters supported the alternative vision standard
because the more individualized approach allows capable individuals to
demonstrate their ability to operate a CMV safely. For example, the
commenters stated the new standard is a step toward less discrimination
in the workplace, inclusion of individuals with vision deficiencies,
less frequent denial of job opportunities for individuals when a
disability does not affect the ability to do the task at hand, and the
opportunity for people to change their lives and to live more
independently. Several more commenters noted specifically that the
alternative vision standard would benefit older workers and especially
older drivers with good work ethics and millions of miles worth of
experience that benefits the industry and motoring public.
In contrast, one commenter, who has been driving for more than 34
years, stated the vision standard should be left alone. The commenter
continued that the proposed alternative vision standard could put a lot
of good drivers off the road.
Response: FMCSA continues to conclude the alternative vision
standard, with its more individualized approach, is more equitable than
the current exemption program and will enable more qualified
individuals to operate as interstate CMV drivers without an adverse
impact on safety. However, FMCSA clarifies that the new standard will
not have a substantial impact on the industry or the number of
available drivers. Although the rule provides substantial benefits to
some individuals and will be beneficial to motor carriers and the
industry, the Agency estimates approximately 868 interstate drivers
will be added each year due to the new standard.\10\
---------------------------------------------------------------------------
\10\ See Section X.A. of the Regulatory Analyses below for a
full description of how this number is calculated.
---------------------------------------------------------------------------
The commenter who stated the alternative vision standard could take
good drivers off the road misunderstands this rule. This rule does not
change the existing vision standard. FMCSA expects current Federal
vision exemption holders, as well as grandfathered drivers, will
satisfy the alternative vision standard because it includes
requirements they should already meet. Therefore, drivers who are
currently operating in interstate commerce should not fail to satisfy
the vision physical qualification standards, unless their vision has
deteriorated.
Q. Change to the Medical Examination Process in 49 CFR 391.43(b)(1)
NPRM: FMCSA proposed to amend Sec. 391.43(b)(1) by adding an
ophthalmologist as a category of eye care professional who may perform
the part of the physical qualification examination that involves visual
acuity, field of vision, and the ability to recognize colors.
Currently, the provision is limited to licensed optometrists.
Comments on the Change to the Medical Examination Process in 49 CFR
391.43(b)(1): ACOEM stated that the ``change allowing an
ophthalmologist to complete the vision portion of the examination
appears to be an oversight not previously identified and certainly
makes sense. In fact, an ophthalmologist
[[Page 3408]]
may be preferred for complicated cases.''
Response: FMCSA adopts the changes to Sec. 391.43(b)(1) as
proposed in the NPRM with one minor change. FMCSA inserts ``licensed''
before optometrist for clarity and to conform to the existing
regulatory text. FMCSA did not propose and declines to require the use
of an ophthalmologist in any particular case.
R. Outside the Scope of the Rulemaking
Comments to the NPRM Outside the Scope of the Rulemaking: Rather
than responding to the proposed rule, one commenter reported on the
commenter's own driving record.
Comments to the NOA Outside the Scope of the Rulemaking: One
commenter suggested consistent Federal vision requirements across all
types of vehicles, including passenger vehicles. Another commenter
stated that if FMCSA keeps adding more regulation the trucking business
will fade away and that FMCSA does not have any concept of what a good
regulation is. A different commenter stated that, with all that is
going on in the trucking industry, FMCSA should be focusing on other
concerns, such as truck parking. Finally, the AOA made suggestions that
relate to the physical qualification standard for individuals who are
treated with insulin to control diabetes mellitus.
Response: Because these comments are outside the scope of this
rulemaking or are not responsive to the NPRM or NOA, no response from
FMCSA is required. Commenters presenting an issue that is outside of
the scope of this rulemaking may wish to consult Sec. 389.31 for
information on how to petition FMCSA to establish, amend, interpret,
clarify, or withdraw a regulation to the extent such options relate to
their concerns.
VII. Changes From the NPRM
This section describes changes relating to the alternative vision
standard made in the final rule other than minor and editorial changes.
The Agency discusses those changes in the Section-by-Section Analysis
below. With respect to the Vision Evaluation Report, Form MCSA-5871,
FMCSA describes all changes to the report because it is not discussed
in the Section-by-Section Analysis.
A. Alternative Vision Standard
FMCSA proposed an alternative vision standard for an individual
``who cannot satisfy either the distant visual acuity or field of
vision standard, or both,'' in the existing vision standard in one eye.
ACOEM commented the proposed vision standard seems to allow any driver
to meet the vision standard if one eye is at least 20/40 with or
without corrective lenses. ACOEM continued that this would permit a
driver who chooses not to obtain corrective lenses to use the proposed
standard if the driver's vision in the better eye meets the existing
vision standard. Concentra provided a similar comment. As discussed
above, it was not the Agency's intent to change the scope of the
current vision exemption program in this regard or to allow individuals
who simply need corrective lenses to be physically qualified under the
alternative vision standard.
FMCSA clarifies in the final rule that the alternative vision
standard is applicable only if the worse eye does not meet the distant
visual acuity standard with corrective lenses. FMCSA adds the
limitation in Sec. 391.41(b)(10)(ii) that a person who meets the
requirements in Sec. 391.44 is physically qualified to operate a CMV
``if the person does not satisfy, with the worse eye, either the
distant visual acuity standard with corrective lenses or the field of
vision standard, or both, in paragraph (b)(10)(i) of this section.''
The Agency makes conforming changes in the title of Sec. 391.44, in
paragraphs (a) and (c) of Sec. 391.44, and in new Sec. 391.45(f).
In paragraph (c) of Sec. 391.44, FMCSA proposed, ``At least
annually, but no later than 45 days after an ophthalmologist or
optometrist signs and dates the Vision Evaluation Report, Form MCSA-
5871, an individual who cannot satisfy either the distant visual acuity
or field of vision standard, or both, in Sec. 391.41(b)(10)(i) in one
eye must be medically examined and certified by a medical examiner as
physically qualified to operate a commercial motor vehicle in
accordance with Sec. 391.43.'' The sentence is long and not easy to
follow. To improve readability, FMCSA removes the clause ``but no later
than 45 days after an ophthalmologist or optometrist signs and dates
the Vision Evaluation Report, Form MCSA-5871,'' and includes the
substance in a new second sentence. To provide additional clarity, the
Agency changes ``no later than'' to ``not more than'' 45 days. The
second sentence reads, ``The examination must begin not more than 45
days after an ophthalmologist or optometrist signs and dates the Vision
Evaluation Report, Form MCSA-5871.''
FMCSA proposed in Sec. 391.44(c)(2)(iv) that an individual is not
physically qualified to operate a CMV ``if there has not been
sufficient time to allow the individual to adapt to and compensate for
the change in vision.'' FMCSA has determined a change to this
requirement will help to clarify that there must a period for the
individual to adapt to and compensate for the vision loss after the
vision deficiency is deemed stable by a medical professional.
Accordingly, FMCSA removes ``there has not been sufficient time'' and
inserts ``sufficient time has not passed since the vision deficiency
became stable.'' Section 391.44(c)(2)(iv) reads, ``The individual is
not physically qualified to operate a commercial motor vehicle if
sufficient time has not passed since the vision deficiency became
stable to allow the individual to adapt to and compensate for the
change in vision.''
B. The Vision Evaluation Report, Form MCSA-5871
For the final Vision Evaluation Report, Form MCSA-5871, FMCSA makes
several editorial changes on page 1. The paragraph reminding that the
report contains sensitive information moves to the footer and appears
on every page. FMCSA changes the heading ``Instructions to the
Individual'' to ``Information for the Individual'' and places the
paragraph before the new heading ``Information for the Ophthalmologist
or Optometrist.'' The style for the definition of monocular vision
changes from a paragraph to a numerical list for consistency purposes.
Other minor editorial and formatting changes are made throughout the
report for clarity, consistency, or as a result of making the report a
fillable document.
The Agency deletes ``(if applicable)'' after the request for a
driver's license number because it is not necessary. All individuals
obtaining a vision evaluation will have some type of driver's license.
In the ``Information for the Individual'' section, FMCSA changes
``no later than'' to ``not more than'' 45 calendar days to conform the
report to the revised regulatory text. FMCSA deletes ``certified''
before ``medical examiner'' in this section, as well as in the
``Information for the Ophthalmologist or Optometrist'' section, because
it is no longer necessary. All MEs have been required to be certified
and listed on FMCSA's National Registry of Certified Medical Examiners
for several years.
In the first paragraph under the new heading ``Information for the
Ophthalmologist or Optometrist,'' FMCSA adds in the first sentence that
the individual is being evaluated ``as part of the process'' to
determine whether the individual meets FMCSA's vision standard. This
change clarifies that the physical qualification of individuals to
operate a CMV is a
[[Page 3409]]
process, and the vision evaluation is one part of the process. In the
second sentence, after ``monocular vision,'' FMCSA adds ``as defined by
FMCSA,'' to signal to the reader that FMCSA has its own definition of
monocular vision. The Agency deletes the sentence that provided,
``Completion of this report does not imply that the ophthalmologist or
optometrist is making a decision to qualify the individual to drive a
commercial motor vehicle.'' Instead, in the last sentence, FMCSA
changes the word ``Any'' to ``The'' and inserts the following quoted
language to provide more clearly that the determination as to whether
the individual ``meets the vision standard and'' is physically
qualified is made by an ME. FMCSA makes other minor changes for
clarity, grammar, and to delete the use of pronouns.
In paragraph (2) of FMCSA's definition of monocular vision, the
Agency conforms the language to the regulatory text and current vision
exemption program. It provides that monocular vision means the
individual has, in the worse eye, distant visual acuity of less than
20/40 ``with corrective lenses.''
As the MRB recommended, FMCSA adds the alternative vision standard
that individuals with monocular vision, as defined by FMCSA, must
satisfy to be physically qualified. The Agency states that the standard
is provided ``For general informational purposes only'' to ensure that
ophthalmologists and optometrists understand that they do not determine
whether the individual meets the alternative vision standard for
medical certification to operate a CMV.
In question 3 on page 2 pertaining to distant visual acuity, FMCSA
replaces ``(please provide both if applicable)'' with ``(select N/A if
there is no vision in an eye).'' The Agency adds boxes that can be
checked to indicate distant visual acuity is not applicable when there
is no vision in an eye.
With respect to question 7 on page 2, which asks if the individual
has monocular vision as defined by FMCSA, the Agency includes a follow-
up request. It provides, ``If yes, cause of the monocular vision
(describe),'' which was question 8 in the draft report. FMCSA makes
this change for consistency with the style for other follow-up
questions in the report. FMCSA renumbers the following questions
accordingly.
In question 8, ``When did the monocular vision begin?'' changes to
``Date the monocular vision began:'' for consistency with the style of
other entries.
Question 10 relating to progressive eye conditions, which was
question 13 in the draft report, follows the questions regarding
monocular vision to consolidate the medical information on the report.
All the medical opinions follow. Instead of providing information about
progressive eye conditions in a table, the report now uses a narrative
format. FMCSA adds a request for additional information if the
condition is not stable.
As recommended by the MRB, the medical opinion regarding whether
the vision deficiency is stable follows the information about
progressive eye conditions as question 11. FMCSA adds a follow-up
request in question 11 for the date the vision deficiency became stable
if it is deemed stable. This change provides additional information for
the ME regarding how long the vision deficiency has been stable. In
question 12, the Agency conforms the language to the revised regulatory
text and expands the medical opinion as recommended by the MRB. It
reads, ``In your medical opinion, has sufficient time passed since the
vision deficiency became stable to allow the individual to adapt to and
compensate for the change in vision and to drive a commercial motor
vehicle safely?''
FMCSA numbers the medical opinion asking if a vision evaluation is
required more often than annually as question 13. FMCSA includes in the
follow-up request not only how often a vision evaluation should be
required, but why. FMCSA adds space to enter additional comments and
instructions to attach additional pages as needed as a new question 14.
Finally, FMCSA makes minor style changes to conform punctuation and
formatting throughout the report.
The final Vision Evaluation Report, Form MCSA-5871, is available in
the docket for this rulemaking. The Agency invites public comment on
the report under the Paperwork Reduction Act as provided in the
information collection, titled ``Medical Qualification Requirements,''
discussed in section X.F. below. Comments should be submitted to OIRA
at OMB as provided in the ADDRESSES section above.
VIII. International Impacts
Motor carriers and drivers are subject to the laws and regulations
of the countries in which they operate unless an international
agreement states otherwise. Drivers and carriers should be aware of the
regulatory differences among nations. Pursuant to the terms of the 1998
medical reciprocity agreement with Canada, the United States will
notify Canada that it has adopted an alternative vision standard and
propose the countries review their applicable vision standards to
determine whether they remain equivalent.
IX. Section-by-Section Analysis
This section-by-section analysis provides changes from the proposed
rule. FMCSA discusses regulatory changes first in numerical order,
followed by changes to Agency guidance.
A. Regulatory Provisions
Section 391.31--Road Test
FMCSA adopts Sec. 391.31(f) as proposed and removes the driver's
social security number, the driver's license number, and the State of
issuance of the driver's license from the Certification of Road Test.
The Agency adopts paragraph (h) as proposed but adds the control number
(2126-0072) provided by OMB for the information collection.
Section 391.41--Physical Qualifications for Drivers
FMCSA adopts Sec. 391.41(b)(10) as proposed but adds a limitation
to clarify when the alternative vision standard is applicable.
Specifically, the Agency adds the limitation in Sec. 391.41(b)(10)(ii)
that a person is physically qualified to operate a CMV who meets the
requirements in Sec. 391.44, ``if the person does not satisfy, with
the worse eye, either the distant visual acuity standard with
corrective lenses or the field of vision standard, or both, in
paragraph (b)(10)(i) of this section.''
Section 391.43--Medical Examination; Certificate of Physical
Examination
FMCSA adds in Sec. 391.43(b)(1) that an ophthalmologist may
perform the vision part of the physical qualification examination as
proposed. FMCSA also inserts the word ``licensed'' before optometrist
to conform with the existing regulation.
Section 391.44--Physical Qualification Standards for an Individual Who
Does Not Satisfy, With the Worse Eye, Either the Distant Visual Acuity
Standard With Corrective Lenses or the Field of Vision Standard, or
Both
FMCSA changes the title of Sec. 391.44 and introductory paragraphs
(a) and (c) to conform to the change in Sec. 391.41(b)(10)(ii).
Specifically, FMCSA clarifies the alternative vision standard is
applicable to an individual ``who does not satisfy, with the worse eye,
either the distant visual acuity standard with corrective lenses or the
field of vision standard, or both,'' in renumbered Sec.
391.41(b)(10)(i).
[[Page 3410]]
In introductory paragraph (b), the Agency inserts the word
``licensed'' before optometrist for consistency and clarity. In
paragraph (b)(2), FMCSA replaces ``his or her'' with ``the
ophthalmologist or optometrist's.''
To improve readability in introductory paragraph (c), FMCSA removes
the clause ``but no later than 45 days after an ophthalmologist or
optometrist signs and dates the Vision Evaluation Report, Form MCSA-
5871,'' and includes the substance in a new second sentence. To provide
additional clarity, the Agency changes ``no later than'' to ``not more
than'' 45 days. The second sentence reads, ``The examination must begin
not more than 45 days after an ophthalmologist or optometrist signs and
dates the Vision Evaluation Report, Form MCSA-5871.''
FMCSA makes clarifying changes to paragraph (c)(2)(iv). FMCSA
removes ``there has not been sufficient time'' and inserts ``sufficient
time has not passed since the vision deficiency became stable.'' The
paragraph reads, ``The individual is not physically qualified to
operate a commercial motor vehicle if sufficient time has not passed
since the vision deficiency became stable to allow the individual to
adapt to and compensate for the change in vision.''
FMCSA makes minor changes in paragraph (d). In paragraph
(d)(3)(ii)(A), FMCSA inserts ``in the specific'' before excepted
interstate commerce to remind the reader that only interstate commerce
excepted by either Sec. 390.3T(f) or Sec. 391.2 satisfies the
requirements of the regulation. FMCSA changes a citation in paragraph
(d)(4) from ``Sec. 391.41(b)(10)'' to ``Sec. 391.41(b)(10)(i)'' to
clarify that the existing vision standard is being referenced. In
addition, the Agency makes a tense change from ``holds'' to ``held.''
FMCSA also makes a tense change in paragraph (d)(5) from ``is'' to
``was.''
Section 391.45--Persons Who Must Be Medically Examined and Certified
FMCSA makes conforming changes to Sec. 391.45(f). It provides, in
relevant part, any driver ``who does not satisfy, with the worse eye,
either the distant visual acuity standard with corrective lenses or the
field of vision standard, or both, in Sec. 391.41(b)(10)(i)'' must be
recertified at least every 12 months.
Section 391.51--General Requirements for Driver Qualification Files
FMCSA adopts Sec. 391.51(b)(3) as proposed, which provides the
driver qualification file must include the written statement from the
motor carrier and certification from the driver required by Sec.
391.44(d)(3).
Section 391.64--Grandfathering for Certain Drivers Who Participated in
a Vision Waiver Study Program
FMCSA proposed to change the title of Sec. 391.64 to remove a
reference to a prior diabetes waiver study program; however, that
change was made in a different rule (86 FR 35637 (July 7, 2021)).
Otherwise, FMCSA adopts Sec. 391.64 as proposed. This section provides
that this rule does not apply to individuals certified under Sec.
391.64(b) for 1 year from the effective date of this rule. After 1
year, any MEC, Form MCSA-5876, issued under Sec. 391.64(b) will be
void.
B. Guidance
This rule amends a regulation that has associated guidance. Such
guidance does not have the force and effect of law, is strictly
advisory, and is not meant to bind the public in any way. Conformity
with guidance is voluntary. Guidance is intended only to provide
information to the public regarding existing requirements under the law
or FMCSA policies. Guidance does not alter the substance of a
regulation.
Appendix A to Part 391--Medical Advisory Criteria
FMCSA removes section II.J., Vision: Sec. 391.41(b)(10), in the
Medical Advisory Criteria of appendix A to part 391 in its entirety as
proposed.
Guidance for Sec. 391.41
Guidance for specific regulations is available through the Guidance
Portal on FMCSA's website. The Agency revises the guidance to Question
3 for Sec. 391.41 \11\ to reflect the changes made by this rule as
proposed. FMCSA conforms the language to the number of medical
conditions that are not subject to an ME's judgment (i.e., two medical
conditions), and removes ``vision'' from the list of conditions for
which an ME has no discretion. In addition, FMCSA changes ``physical
examinations'' to ``physical qualification examinations'' to reflect
current Agency terminology. Finally, the Agency removes the following
quoted language that provides the ME is knowledgeable about whether ``a
particular condition would interfere with the driver's ability to
operate a CMV safely.'' In its place, FMCSA inserts ``the driver's
physical condition is adequate to enable the driver to operate the
vehicle safely.'' The inserted language aligns with the requirements in
49 U.S.C. 31136(a)(3) and reflects that each of FMCSA's physical
qualification standards has different regulatory requirements regarding
how an ME is to evaluate a condition. The guidance for Question 3 reads
as follows:
---------------------------------------------------------------------------
\11\ Agency identifier FMCSA-MED-391.41-Q3, available at https://www.fmcsa.dot.gov/medical/driver-medical-requirements/what-are-physical-qualification-requirements-operating-cmv (last accessed
Sept. 7, 2021).
---------------------------------------------------------------------------
Question 3: What are the physical qualification requirements for
operating a CMV in interstate commerce?
Guidance: The physical qualification regulations for drivers in
interstate commerce are found at Sec. 391.41. Instructions to medical
examiners performing physical qualification examinations of these
drivers are found at Sec. 391.43.
The qualification standards cover 13 areas, which directly relate
to the driving function. All but two of the standards require a
judgment by the medical examiner. A person's qualification to drive is
determined by a medical examiner who is knowledgeable about the
driver's functions and whether the driver's physical condition is
adequate to enable the driver to operate the vehicle safely. In the
case of hearing and epilepsy, the current standards are absolute,
providing no discretion to the medical examiner. However, drivers who
do not meet the current requirements may apply for an exemption as
provided by 49 CFR part 381.
X. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
FMCSA has considered the impact of this final rule under E.O. 12866
(58 FR 51735 (Oct. 4, 1993)), Regulatory Planning and Review; E.O.
13563 (76 FR 3821 (Jan. 21, 2011)), Improving Regulation and Regulatory
Review; and DOT's regulatory policies and procedures. OIRA within OMB
has determined that this final rule is not a significant regulatory
action under section 3(f) of E.O. 12866, as supplemented by E.O. 13563,
and does not require an assessment of potential costs and benefits
under section 6(a)(3) of E.O. 12866. Accordingly, OMB has not reviewed
it under that E.O. The Agency has determined that the final rule
results in cost savings.
The Regulatory Impact Assessment follows:
Baseline for the Analysis
Drivers who do not satisfy, with the worse eye, either the existing
distant visual acuity standard with corrective lenses or the field of
vision standard, or both, may apply to FMCSA for an
[[Page 3411]]
exemption from the standard to operate CMVs in interstate commerce (49
CFR part 381, subpart C). To do so, the driver must submit a letter of
application and supporting documents to enable FMCSA to evaluate the
safety impact of the exemption.\12\ Currently, FMCSA grants exemptions
to applicants who meet specific criteria, including stable vision and
experience safely operating a CMV with the vision deficiency. Since the
inception of the vision exemption program, the predominant reason for
denial of an exemption is less than 3 years of experience operating
with the vision deficiency. The Agency must ensure that the exemption
will likely achieve a level of safety that is equivalent to or greater
than the level that would be achieved by complying with the
regulations.
---------------------------------------------------------------------------
\12\ A copy of the application template is available in the
docket and at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/regulations/medical/driver-medical-requirements/10451/vision-exemption-package-0918.pdf (last accessed Aug. 19, 2021).
---------------------------------------------------------------------------
If an exemption is granted, the driver must meet certain conditions
to maintain the exemption. The driver must receive an annual vision
evaluation by an ophthalmologist or optometrist and an annual physical
qualification examination by an ME. In addition, the Agency must
monitor the implementation of each exemption and immediately revoke an
exemption if: The driver fails to comply with the terms and conditions;
the exemption has resulted in a lower level of safety than was
maintained before the exemption; or continuation of the exemption would
not be consistent with the goals and objectives of the Federal Motor
Carrier Safety Regulations (49 CFR 381.330).
FMCSA monitors vision-exempted drivers on a quarterly basis. If any
potentially disqualifying information is identified, FMCSA will request
a copy of the violation or crash report from the driver. Should the
violation be disqualifying, FMCSA will revoke the exemption
immediately.
Currently, 1,967 drivers hold vision exemptions.\13\ Compared to
all interstate CMV drivers operating in the United States in 2019 (4
million, including 3.4 million who hold CDLs),\14\ these drivers
represent less than 0.1 percent of the population.\15\ There are
approximately 1,806 grandfathered drivers.\16\ FMCSA checks the driving
records of grandfathered drivers to determine if they continue to
operate CMVs safely.
---------------------------------------------------------------------------
\13\ FMCSA data as of August 5, 2021.
\14\ FMCSA 2020 Pocket Guide to Large Truck and Bus Statistics,
available at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2020-10/FMCSA%20Pocket%20Guide%202020-v8-FINAL-10-29-2020.pdf (last
accessed Aug. 9, 2021).
\15\ Compared to all (interstate and intrastate) CMV drivers,
6.8 million, or CDL drivers, 4.9 million, the percentage is even
lower.
\16\ The provisions of 49 CFR 391.41(b)(10) do not apply to
drivers who were in good standing on March 31, 1996 in a vision
waiver study program; provided, they meet certain conditions (49 CFR
391.64(b)). This figure may not represent active drivers.
---------------------------------------------------------------------------
Impact of the Final Rule: Physical Qualification and Road Test
Physical Qualification
As a result of this final rule, an individual who does not satisfy,
in the worse eye, either the existing distant visual acuity standard
with corrective lenses or field of vision standard, or both, can be
physically qualified without applying for or receiving an exemption.
The individual will still have to receive a vision evaluation by an
ophthalmologist or optometrist. The ophthalmologist or optometrist will
complete the Vision Evaluation Report, Form MCSA-5871.
For those who obtain an MEC, Form MCSA-5876, this action may
represent a streamlined process compared to the requirements of the
vision exemption program in that the driver will not need to compile
and submit the letter of application and supporting documentation to
FMCSA, or respond to any subsequent requests for information. However,
it is possible that the ME could issue a certificate that is valid for
a shorter time to monitor the condition. In such circumstances, under
the vision exemption program, the applicant would likely not receive an
exemption. For those who do not obtain an MEC, Form MCSA-5876, the
result may or may not have been the same under the vision exemption
program.
This final rule will result in the discontinuation of the Federal
vision exemption program. Instead, the physical qualification
determination of individuals in, or who would be applying to, the
exemption program will be made by an ME, who is trained and qualified
to make such determinations, considering the information received in
the Vision Evaluation Report, Form MCSA-5871, from the ophthalmologist
or optometrist.
Road Test
Instead of requiring 3 years of intrastate driving experience with
the vision deficiency as in the current exemption program, individuals
physically qualified under the alternative vision standard for the
first time must complete a road test before operating in interstate
commerce. The road test will be conducted by motor carriers in
accordance with the road test already required by Sec. 391.31.
As described in the NPRM, individuals will be excepted from the
road test requirement if they have 3 years of intrastate or specific
excepted interstate CMV driving experience with the vision deficiency,
hold a valid Federal vision exemption, or are medically certified under
Sec. 391.64(b). These individuals have already demonstrated they can
operate a CMV safely with the vision deficiency. FMCSA finds that a
road test is an appropriate indicator of an individual's ability to
operate a CMV safely with the vision deficiency. Thus, the Agency
expects there will be no adverse impact on safety from eliminating the
intrastate driving experience criterion. When the Federal Highway
Administration (FHWA), the predecessor agency to FMCSA, adopted the
road test in Sec. 391.31, it stated that the interests of CMV safety
would be promoted by ensuring drivers have demonstrated their skill by
completing the road test (35 FR 6458, 6450 (Apr. 22, 1970)).
The intrastate driving experience criterion has the limitation that
some States do not have waiver programs through which drivers can
obtain the driving experience necessary to meet the criteria of the
Federal vision exemption program. The removal of the 3-year experience
criterion under this final rule will more readily allow these
individuals to operate in interstate commerce. However, the current
number of exemption holders, grandfathered drivers, and applicants
denied exemptions annually represents less than 1 percent of all
interstate CMV drivers.
The Agency expects this final rule will be safety neutral. FMCSA
notes that, although it will no longer directly monitor the safety
performance of drivers, motor carriers will continue to monitor
individuals' safety performance when hiring drivers and during the
annual inquiry and review of the driving record required by Sec. Sec.
391.23 and 391.25, respectively.
Costs
FMCSA estimates that the final rule will result in incremental cost
savings of approximately $1.6 million annually from the elimination of
the Federal vision exemption program and contract expenditures (Table
1). As described in detail below, FMCSA also accounts for
[[Page 3412]]
the annual cost of the road test requirement at approximately $44,000.
Table 1--Cost Savings: Federal Vision Exemption Program Contract and Road Test
[2020 dollars]
----------------------------------------------------------------------------------------------------------------
Contract cost
Fiscal year \(a)\ \(b)\ Road test Total
----------------------------------------------------------------------------------------------------------------
2021-2022.............................................. ($1,596,375) $44,048 ($1,552,327)
2022-2023.............................................. (1,644,267) 44,048 (1,600,219)
2023-2024.............................................. (1,693,595) 44,048 (1,649,547)
2024-2025.............................................. (1,744,402) 44,048 (1,700,354)
----------------------------------------------------------------------------------------------------------------
\(a)\ For years 2022-2023, 2023-2024, and 2024-2025, FMCSA estimated an average contract cost increase of 3
percent and extrapolated based on the percent increase of previous years.
\(b)\ The program contract estimate for 2021-2022 was adjusted to 2020 dollars from the value of $1,577,268 in
2019 dollars used in the NPRM. FMCSA applied a multiplier of 1.012114, extracted from the Bureau of Economic
Analysis Gross Domestic Product (GDP) Implicit Price Deflator series from December 21, 2020. The GDP deflator
for 2020 of 113.625 divided by the deflator of 112.265 for 2019 is equal to 1.012114. $1,577,268 x 1.012114 =
$1,596,375.
The 1,967 current vision exemption holders will no longer have to
apply for exemptions and potential drivers who would not qualify for an
exemption because they do not have 3 years of intrastate driving
experience may meet the alternative vision standard and be able to
operate a CMV in interstate commerce. This rule leads to a reduction in
burden, as drivers will no longer be required to create and assemble
the substantial amount of information and documentation necessary to
apply for or renew an exemption, or to respond to subsequent requests
for information. However, the affected population is small (less than 1
percent of CMV drivers), and the relative advantages for these
individuals are unlikely to affect market conditions in the truck and
bus industries.
FMCSA estimates that the road test will result in a total annual
cost impact of $44,000 (Table 2). There will be approximately 868
drivers requiring a road test under Sec. 391.44 each year. This number
is the average of new applications for the vision exemption program
FMCSA received over years 2018 through 2020.\17\ FMCSA recognizes this
is a high estimation and overstates the burden associated with the road
test. While some of the individuals will already be required to obtain
a road test under Sec. 391.31, in the absence of the requirement in
Sec. 391.44(d), FMCSA lacks internal data to estimate how many
individuals will already be required to obtain a road test. Therefore,
FMCSA opted for a conservative approach of assuming all 868 individuals
would require a road test.
---------------------------------------------------------------------------
\17\ In 2018 there were 1,073 applicants, in 2019 there were
1,030, and in 2020 there were 500 ((1,073 + 1,030 + 500) / 3 = 868).
---------------------------------------------------------------------------
As described above, motor carriers will be responsible for
administering the test to the drivers, which is estimated to take 0.55
hours (33 minutes). For the hourly wage rates, FMCSA used $31 for the
drivers \18\ (Table 3) and $61 for the motor carrier's compliance
officer.\19\
---------------------------------------------------------------------------
\18\ Department of Labor (DOL), Bureau of Labor Statistics
(BLS). Occupational Employment and Wages, May 2020, 53-0000
Transportation and Material Moving Occupations. Available at https://www.bls.gov/oes/current/oes530000.htm (last accessed Aug. 26,
2021).
\19\ DOL, BLS. Occupational Employment and Wages, May 2020, 13-
1041 Compliance Officers. Available at https://www.bls.gov/oes/current/oes131041.htm (last accessed Aug. 26, 2021).
Table 2--Road Test Cost Calculations
[2020 dollars]
------------------------------------------------------------------------
------------------------------------------------------------------------
Drivers/Motor carriers..................................... 868
Test Hours................................................. 0.55
Driver Wage................................................ $30.95
------------
Subtotal............................................... $14,770
Compliance Officer Wage \20\............................... $61.35
------------
Subtotal............................................... $29,278
------------
Sum................................................ $44,048
------------------------------------------------------------------------
Note: Totals may not sum due to rounding.
---------------------------------------------------------------------------
\20\ In addition to the fringe benefit rate of 52 percent, FMCSA
also applied an overhead rate of 27 percent to the compliance
officer's wage. The Agency used industry data gathered for the Truck
Costing Model developed by the Upper Great Plains Transportation
Institute, North Dakota State University (Berwick, Farooq. Truck
Costing Model for Transportation Managers. North Dakota State
University. Upper Great Plains Transportation Institute. Aug. 2003.
Appendix A, pp. 42-47. Available at: http://www.mountain-plains.org/pubs/pdf/MPC03-152.pdf (last accessed Aug. 20, 2021)). Research
conducted for this model found an average cost of $0.107 per mile of
CMV operation for management and overhead, and $0.39 per mile for
labor, indicating an overhead rate of 27 percent (27% = $0.107 /
$0.39 (rounded to the nearest whole percent)).
Table 3--Wage Rates for CMV Truck Drivers
--------------------------------------------------------------------------------------------------------------------------------------------------------
North American Industry Median hourly
BLS standard Classification System Total Median hourly Fringe benefit base wage +
Occupational title occupation (NAICS) occupational employees base wage rate \(c)\ fringe
code designation benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Heavy and Tractor-Trailer Truck Drivers... 53-3032 All Industry................ 1,797,710 $22.66 52% $34.47
Light Truck Drivers....................... 53-3033 All Industry................ 929,470 17.81 52% 27.09
Bus drivers, school and or special client. 53-3052 All Industry................ 162,850 22.07 52% 33.57
Bus drivers, transit and intercity........ 53-3058 All Industry................ 431,986 15.54 52% 23.64
---------------------------------------------------------------
[[Page 3413]]
Weighted Driver Wage.................. .............. ............................ .............. .............. .............. 30.95
--------------------------------------------------------------------------------------------------------------------------------------------------------
\(c)\ DOL, BLS. ``Employer Cost of Employee Compensation Dec. 2020 News Release,'' Table 4: Employer Costs for Employee Compensation for private
industry workers by occupational and industry group. Available at https://www.bls.gov/news.release/pdf/ecec.pdf (last accessed Nov. 2, 2020). The
fringe benefit rate is the ratio of hourly wage for average hourly wage for a private industry worker and the associated hourly benefit rate (52% =
13.78 / $26.45 (rounded to the nearest whole percent)). FMCSA does not apply an overhead rate to the driver's hourly wage, as the road test occurs
prior to being employed.
Although the Agency acknowledges there are motor carriers employing
multiple drivers who would be certified under the new alternative
vision standard, FMCSA lacks data to estimate the exact number of motor
carriers impacted by this rule. Therefore, to ensure the inclusion of
all affected motor carriers, FMCSA opted for a conservative approach of
assuming a 1:1 ratio of drivers per motor carrier, making $44,000 a
likely overestimate. Additionally, there may be some drivers medically
certified under the new alternative vision standard who are also motor
carriers, in which case the test must be given by a person other than
themselves (49 CFR 391.31(b)). FMCSA treats the impacts on these
drivers as equivalent to those of all affected drivers. Using this
approach, the Agency estimates the cost for each road test at
$50.77.\21\
---------------------------------------------------------------------------
\21\ ($61.35 x 0.55) + ($30.95 x 0.55) = $50.77.
---------------------------------------------------------------------------
Benefits
Eliminating the prohibition on certifying individuals who do not
satisfy, in the worse eye, either the existing visual acuity standard
with corrective lenses or field of vision standard, or both, without an
exemption will enable more qualified individuals to operate as
interstate CMV drivers without compromising safety. These drivers are
relieved of the time and paperwork burden associated with applying for
or renewing an exemption.\22\ The alternative vision standard allows
previously qualified interstate CMV drivers who are no longer able to
satisfy, in the worse eye, either the existing distant visual acuity
standard with corrective lenses or field of vision standard, or both,
to return sooner to operating interstate. Additional employment
opportunities may also result from the removal of the 3 years of
intrastate driving experience requirement, which is a criterion of the
current exemption program. Drivers who do not have 3 years of
intrastate driving experience may meet the alternative vision standard
and be able to operate a CMV in interstate commerce. A one-time road
test is less burdensome on drivers than obtaining 3 years of intrastate
driving experience. It also addresses the consideration that many
drivers live in States that do not issue vision waivers. The road test
provides more drivers the opportunity to operate a CMV.
---------------------------------------------------------------------------
\22\ As discussed below in section X.F. with respect to the
information collection titled ``Medical Qualification
Requirements,'' FMCSA attributes 2,236 annual burden hours at a cost
of $67,486 for drivers to request and maintain a vision exemption.
The final rule eliminates this entire burden.
---------------------------------------------------------------------------
Regarding risk, the Agency expects no changes in risk resulting
from the very small number of additional individuals affected by this
final rule relative to those of the baseline. Therefore, FMCSA
considers this final rule to be safety neutral.
B. Congressional Review Act
This final rule is not a major rule as defined under the
Congressional Review Act (5 U.S.C. 801-808).\23\
---------------------------------------------------------------------------
\23\ A major rule means any rule that OMB finds has resulted in
or is likely to result in (a) an annual effect on the economy of
$100 million or more; (b) a major increase in costs or prices for
consumers, individual industries, Federal agencies, State agencies,
local government agencies, or geographic regions; or (c) significant
adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic
and export markets (5 U.S.C. 804(2)).
---------------------------------------------------------------------------
C. Regulatory Flexibility Act (Small Entities)
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996,\24\ requires Federal agencies to consider the effects of the
regulatory action on small business and other small entities and to
minimize any significant economic impact. The term ``small entities''
comprises small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000 (5
U.S.C. 601(6)). Accordingly, DOT policy requires an analysis of the
impact of all regulations on small entities, and mandates that agencies
strive to lessen any adverse effects on these businesses.
---------------------------------------------------------------------------
\24\ Public Law 104-121, 110 Stat. 857 (Mar. 29, 1996), 5 U.S.C.
601 note.
---------------------------------------------------------------------------
This rule affects drivers and motor carriers. Drivers are not
considered small entities because they do not meet the definition of a
small entity in section 601 of the RFA. Specifically, drivers are
considered neither a small business under section 601(3) of the RFA,
nor are they considered a small organization under section 601(4) of
the RFA.
The Small Business Administration (SBA) defines the size standards
used to classify entities as small. SBA establishes separate standards
for each industry, as defined by the NAICS. This rule will affect many
different industry sectors in addition to the Transportation and
Warehousing sector (NAICS sectors 48 and 49); for example, the
Construction sector (NAICS sector 23), the Manufacturing sector (NAICS
sectors 31, 32, and 33), and the Retail Trade sector (NAICS sectors 44
and 45). Industry groups within these sectors have size standards for
qualifying as small based on the number of employees (e.g., 500
employees), or on the amount of annual revenue (e.g., $27.5 million in
revenue). To determine the NAICS industries potentially affected by
this rule, FMCSA cross-referenced occupational employment statistics
from the BLS with NAICS industry codes. A maximum of 868 motor carriers
will be impacted in a given year. Even if all affected motor carriers
were small and operated in the same NAICS code, it is unlikely that
this rule will impact a substantial number of small entities.
The RFA does not define a threshold for determining whether a
specific regulation results in a significant impact. However, the SBA,
in guidance to government agencies, provides some objective measures of
significance that the agencies can consider using. One measure that
could be used to illustrate a significant impact is revenue costs,
[[Page 3414]]
specifically, if the cost of the regulation exceeds 1 percent of the
average annual revenues of small entities in the sector. Given the
rule's average annual per-entity impact of $33.74,\25\ a small entity
would need to have average annual revenues of less than $3,374 to
experience an impact greater than 1 percent of average annual revenue.
This is an average annual revenue that is smaller than would be
required for a firm to support one employee; therefore, this action
will not result in a significant impact.
---------------------------------------------------------------------------
\25\ The motor carrier's wage is estimated at $61.35, as
described in more detail in the Regulatory Impact Assessment. The
motor carrier would spend 30 minutes administering the road test,
and 3 minutes on the associated paperwork, leading to a total of 33
minutes, or 0.55 hours. 0.55 hours x $61.35 = $33.74.
---------------------------------------------------------------------------
Consequently, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
D. Assistance for Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996,\26\ FMCSA wants to assist small
entities in understanding this final rule so they can better evaluate
its effects on themselves and participate in the rulemaking initiative.
If the final rule will affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance; please consult the person listed
under FOR FURTHER INFORMATION CONTACT.
---------------------------------------------------------------------------
\26\ Public Law 104-121, 110 Stat. 857, 858 (Mar. 29, 1996), 5
U.S.C. 601 note.
---------------------------------------------------------------------------
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the SBA's Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-
734-3247). DOT has a policy regarding the rights of small entities to
regulatory enforcement fairness and an explicit policy against
retaliation for exercising these rights.
E. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or Tribal government, in
the aggregate, or by the private sector of $170 million (which is the
value equivalent of $100 million in 1995, adjusted for inflation to
2020 levels) or more in any 1 year. Although this final rule will not
result in such an expenditure, the Agency discusses the effects of this
rule elsewhere in this preamble.
F. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) requires
that an agency consider the impact of paperwork and other information
collection burdens imposed on the public. An agency is prohibited from
collecting or sponsoring an information collection, as well as imposing
an information collection requirement, unless it displays a valid OMB
control number (5 CFR 1320.8(b)(3)(vi)).
This final rule impacts an existing information collection request
(ICR) titled ``Medical Qualification Requirements'' (OMB control number
2126-0006), and a new ICR titled ``391.31 Road Test Requirement'' (OMB
control number 2126-0072). The ICRs will be discussed separately below,
followed by a discussion of the net information collection and
reporting burdens of the final rule. FMCSA will submit a copy of the
final rule to OIRA at OMB for review and approval of the information
collections.
1. Information Collection Requests
a. Medical Qualification Requirements ICR
This final rule revises the existing approved Medical Qualification
Requirements ICR (OMB control number 2126-0006), which expires on
December 31, 2024. FMCSA seeks approval for the revision of the ICR due
to the Agency's development of this rule, which includes the use of the
Vision Evaluation Report, Form MCSA-5871.
Title: Medical Qualification Requirements.
OMB Control Number: 2126-0006.
Type of Review: Revision of a currently approved information
collection.
Summary: In this final rule, FMCSA establishes an alternative
vision standard for individuals who do not satisfy, with the worse eye,
either FMCSA's existing distant visual acuity standard with corrective
lenses or the field of vision standard, or both, in renumbered 49 CFR
391.41(b)(10)(i) to be physically qualified to operate a CMV in
interstate commerce under specified conditions. The alternative vision
standard uses a collaborative process for physical qualification.
Before an individual may be medically certified under the alternative
vision standard, the individual must have a vision evaluation conducted
by an ophthalmologist or optometrist. The ophthalmologist or
optometrist records the findings from the vision evaluation and
provides specific medical opinions on the Vision Evaluation Report,
Form MCSA-5871. Then, an ME performs an examination, considers the
information provided on the report, and determines whether the
individual meets the alternative vision standard, as well as FMCSA's
other physical qualification standards. If the ME determines the
individual meets the physical qualification standards, the ME may issue
an MEC, Form MCSA-5876, for a maximum of 12 months. The Vision
Evaluation Report, Form MCSA-5871, supports safety by ensuring that CMV
drivers are physically qualified to operate trucks and buses on our
Nation's highways.
Response to comments: The NPRM served as the 60-day notice for the
information collection revision and requested public comment on the
draft Vision Evaluation Report, Form MCSA-5871, and information
collection. FMCSA received no substantive comments regarding the
report, or the burden associated with the information collection, in
response to the NPRM. As discussed above in sections V.B. and C., the
MRB recommended minor changes to the report and FMCSA published an NOA
seeking comment on the recommendations. FMCSA again received no
substantive comments regarding the report or burden of the information
collection. Section VII.B. above describes all the changes made to the
report in the final rule. With respect to the information collection
burden, FMCSA adds requests on the report for a date and a couple of
words to explain why a progressive eye condition is not stable and the
rationale when a vision evaluation is needed more frequently than
annually. However, FMCSA finds that the minor changes to the Vision
Evaluation Report, Form MCSA-5871, do not require revision of FMCSA's
time estimate to complete the report. FMCSA finds no basis from the
comments to change the analysis of the burden for the information
collection.
Burden estimates: Because of this final rule, FMCSA adds a new
information collection (IC-8 Qualifications of Drivers; Vision
Standard) to the existing ICR for an ophthalmologist or optometrist to
complete a Vision Evaluation Report, Form MCSA-5871. FMCSA estimates
[[Page 3415]]
that ophthalmologists and optometrists will complete 4,641 reports
annually and that it will take them 8 minutes to complete a report.
Thus, the estimated annual burden hours associated with the information
collection is 619 hours (4,641 forms x 8 minutes per form / 60 minutes
= 619 hours, rounded to the nearest whole hour). At an average hourly
labor cost of $84.22 for optometrists,\27\ the estimated salary cost
associated with this information collection is $52,130 ($84.22 hourly
labor costs x 619 hours = $52,130, rounded to the nearest dollar).
---------------------------------------------------------------------------
\27\ An hourly wage rate for ophthalmologists is not available.
---------------------------------------------------------------------------
Estimated number of respondents: 4,641 ophthalmologists and
optometrists.
Estimated responses: 4,641.
Frequency: At least annually.
Estimated burden hours: 619.
Estimated cost: $52,130.
The alternative vision standard eliminates the need for the Federal
vision exemption program and the related information collection (IC-
3a). The vision exemption program requires individuals to submit
personal, health, and driving information during the application
process. In addition, motor carriers must copy and file the vision
exemption in the driver qualification file. FMCSA attributes, in the
OMB-approved supporting statement for IC-3a, 2,236 annual burden hours
at a cost of $67,486 to obtain and maintain a vision exemption, which
is eliminated by this rule.
The net effect of this rule on this ICR is a reduction in burden
hours of 1,617 hours (619 hours related to the Vision Evaluation
Report, Form MCSA-5871 -2,236 hours related to the current vision
exemption program = -1,617). In addition, the net effect of the rule
with respect to costs is a reduction of $15,356 ($52,130 related to the
report -$67,486 related to the current vision exemption program = -
$15,356).
The revised total annual estimated burden associated with the
Medical Qualification Requirements ICR that reflects the addition of
the information collection for the Vision Evaluation Report, Form MCSA-
5871, and elimination of the Federal vision exemption program is as
follows.
Total estimated number of respondents: 6,226,330 CMV drivers, motor
carriers, MEs, treating clinicians, ophthalmologists, and optometrists.
Total estimated responses: 35,545,790.
Total estimated burden hours: 2,705,862.
Total estimated cost: $194,994,040.
Additional information for the assumptions, calculations, and
methodology summarized above is provided in the supporting statement
for the Medical Qualification Requirements ICR. The supporting
statement is available in the docket for this rulemaking.
b. 391.31 Road Test Requirement ICR
FMCSA establishes a new 391.31 Road Test Requirement ICR. The ICR
estimates the paperwork burden motor carriers incur to comply with the
reporting and recordkeeping tasks required for the road test associated
with 49 CFR 391.31. FMCSA has not previously accounted for the burden
associated with Sec. 391.31 road tests; accordingly, the ICR accounts
for the burden. The ICR includes the incremental burden for motor
carriers associated with Sec. 391.31 road tests due to this final
rule.
Title: 391.31 Road Test Requirement.
OMB Control Number: 2126-0072.
Type of Review: Approval of a new information collection.
Summary: The road test provision in Sec. 391.31 provides an
individual must not drive a CMV until the individual has successfully
completed a road test and has been issued a certificate of driver's
road test. It was adopted by FHWA in 1970 (35 FR 6458, 6462 (Apr. 22,
1970)). At that time, FHWA stated that the interests of CMV safety
would be promoted by ensuring drivers have demonstrated their skill by
completing a road test (35 FR 6459). The related requirement in Sec.
391.51 that the motor carrier include information relating to the road
test in the driver qualification file was also adopted in 1970 (35 FR
6465). The information documents the driver's ability to operate a CMV
safely.
Sections 391.31 and 391.51 are based on the authority of the Motor
Carrier Act of 1935 \28\ (1935 Act) and the Motor Carrier Safety Act of
1984 \29\ (1984 Act), both as amended. The 1935 Act, as codified at 49
U.S.C. 31502(b), authorizes the Secretary to prescribe requirements for
the qualifications of employees of a motor carrier and the safety of
operation and equipment of a motor carrier. The 1984 Act, as codified
at 49 U.S.C. 31136, provides concurrent authority to regulate drivers,
motor carriers, and vehicle equipment. Section 31136(a) requires the
Secretary to issue regulations on CMV safety, including regulations to
ensure that CMVs are operated safely. The Secretary has discretionary
authority under 49 U.S.C. 31133(a)(8) to prescribe recordkeeping and
reporting requirements. The Administrator of FMCSA is delegated
authority under 49 CFR 1.87 to carry out the functions vested in the
Secretary by 49 U.S.C. Chapters 311 and 315 as they relate to CMV
operators, programs, and safety.
---------------------------------------------------------------------------
\28\ Public Law 74-255, 49 Stat. 543 (Aug. 9, 1935).
\29\ Public Law 98-554, 98 Stat. 2829 (Oct. 30, 1984).
---------------------------------------------------------------------------
Motor carriers must ensure each driver has the skill to operate a
CMV safely. The information collected and maintained by motor carriers
in each driver qualification file related to the road test
substantiates the driver can operate a CMV safely and the motor carrier
has fulfilled its regulatory requirements. It also aids Federal and
State safety investigators in assessing the qualifications of drivers.
Public interest in highway safety dictates that employers hire
drivers who can safely operate CMVs amid the various physical and
mental demands of truck and bus driving. Section 391.31 requires a
motor carrier to conduct a road test when the motor carrier hires a new
driver. The motor carrier is required to rate the performance of the
driver during the test on a road test form. If the road test is
successfully completed, the motor carrier completes a certificate of
driver's road test and provides a copy to the driver. Motor carriers
may maintain the required road test form and certificate electronically
or via paper copy. The motor carrier must retain the signed road test
form and the signed certificate in the driver qualification file.
Generally, driver qualification files must be maintained at the motor
carrier's principal place of business. Neither the road test form nor
the certificate is routinely submitted to FMCSA. A motor carrier would
only make the information available when requested by an FMCSA or State
safety investigator for an investigation or audit.
As indicated above, there are three reporting and recordkeeping
tasks motor carriers perform regarding the road test required by Sec.
391.31 when they hire a new driver. The three tasks are:
1. The motor carrier completes and signs the road test form
while the driver performs a pre-trip inspection and the driving
portion of the road test (49 CFR 391.31(d)).
2. If the driver successfully passes the road test, the motor
carrier completes a certificate of driver's road test in
substantially the form prescribed in Sec. 391.31(f) (49 CFR
391.31(e)) and gives the driver a copy (49 CFR 391.31(g)).
3. The motor carrier retains in the driver qualification file
the original signed road test form and the original, or a copy, of
the signed certificate of driver's road test (49 CFR 391.31(g)(1)
and (2)).
Response to comments: The NPRM served as the 60-day notice for the
[[Page 3416]]
information collection and requested public comment on it. FMCSA
received no substantive comments regarding the burden associated with
the information collection in response to the NPRM. However, ATA
referenced ``a 30-minute road test,'' which is consistent with FMCSA's
estimate for the road test. ACOEM expressed general concern that the
number of employer-required road tests would significantly increase due
to the alternative vision standard but provided no specific data or
number. FMCSA finds no basis from the comments to change the analysis
of the burden for the information collection.
Burden estimates: To estimate the total burden hours, FMCSA
multiplies the number of respondents by the hourly burden per response.
FMCSA estimates a burden of 30 minutes for the motor carrier to
complete the road test form while conducting the road test. Should the
driver successfully pass the road test, FMCSA assumes it will take the
motor carrier 2 minutes to complete the certification of driver's road
test and an additional 1 minute to store documents in the driver
qualification file.
To estimate costs, FMCSA assumes a compliance officer will be the
person who will complete the road test form and associated certificate,
and a file clerk will be the person who will store the documents. The
median salary for a compliance officer is $61.35 per hour. The median
salary for a file clerk is $29.42 per hour.
The ICR estimates the information-collection burden incurred by
motor carriers associated with the Sec. 391.31 road test in two
circumstances. The first is when the road test is required by Sec.
391.31 (IC-1); the second is when the road test is required as part of
the alternative vision standard in Sec. 391.44 (IC-2). Most of the
motor carrier burden hours and cost for the information collection
relates to IC-1 and is reflected below in the total burden and cost
amounts for the ICR.
IC-2 consists of the incremental burden associated with the
requirement in this rule that individuals physically qualified under
the alternative vision standard in Sec. 391.44 for the first time must
complete a road test in accordance with Sec. 391.31. However,
individuals are excepted from the road test requirement if they have 3
years of intrastate or specific excepted interstate CMV driving
experience with the vision deficiency, hold a valid Federal vision
exemption, or are medically certified under Sec. 391.64(b). FMCSA
estimates there will be approximately 868 drivers requiring a road test
under Sec. 391.44 each year. Therefore, the respondent universe of
motor carriers is also 868.
The estimated incremental annual burden associated with the
requirement in this rule that certain individuals physically qualified
under Sec. 391.44 for the first time must complete a road test in
accordance with Sec. 391.31 (IC-2), is as follows.
Estimated number of respondents: 868 motor carriers.
Estimated responses: 2,604.
Frequency: Once.
Estimated burden hours: 477.
Estimated cost: $28,735.
The total estimated annual burden associated with the 391.31 Road
Test Requirement ICR for IC-1 and IC-2 is as follows:
Total estimated number of respondents: 497,981 motor carriers.
Total estimated responses: 1,493,943.
Total estimated burden hours: 273,888.
Total estimated cost: $16,485,764.
Additional information for the assumptions, calculations, and
methodology summarized above is provided in the supporting statement
for the 391.31 Road Test Requirement ICR. The supporting statement is
available in the docket for this rulemaking.
2. Net Information Collection Reporting Burdens
As shown in Table 4 below, the combined net effect of the rule on
the two ICRs is a reduction in burden hours of 1,140 and an addition of
cost in the amount of $12,255.
Table 4--Net Burden of Medical Qualifications Requirements ICR and Road
Test ICR
------------------------------------------------------------------------
Burden
ICR hours Cost
------------------------------------------------------------------------
Medical Qualifications Requirements............... (1,617) ($16,480)
Road Test......................................... 477 $28,735
---------------------
Net Burden.................................... (1,140) $12,255
------------------------------------------------------------------------
3. Request for Comments
FMCSA asks for comment on the information collection requirements
of this rule, as well as the revised total estimated burden associated
with the Medical Qualification Requirements ICR and the total estimated
burden associated with the new 391.31 Road Test Requirement ICR.
Specifically, the Agency asks for comment on: (1) Whether the proposed
information collections are necessary for FMCSA to perform its
functions; (2) how the Agency can improve the quality, usefulness, and
clarity of the information to be collected; (3) the accuracy of FMCSA's
estimate of the burden of this information collection; and (4) how the
Agency can minimize the burden of the information collection.
If you have comments on the collection of information, you must
submit those comments as outlined under ADDRESSES at the beginning of
this final rule.
G. E.O. 13132 (Federalism)
A rule has implications for federalism under section 1(a) of E.O.
13132 if it has ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' FMCSA has determined that this rule does not have
substantial direct costs on or for States, nor will it limit the
policymaking discretion of States. Nothing in this document preempts
any State law or regulation. Therefore, this rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Impact Statement.
H. Privacy
Section 522 of title I of division H of the Consolidated
Appropriations Act, 2005,\30\ requires the Agency to conduct a privacy
impact assessment of a regulation that will affect the privacy of
individuals. The assessment considers impacts of the rule on the
privacy of information in an identifiable form and related matters.
---------------------------------------------------------------------------
\30\ Public Law 108-447, 118 Stat. 2809, 3268 (Dec. 8, 2004), 5
U.S.C. 552a note.
---------------------------------------------------------------------------
This rule requires the collection of personally identifiable
information and protected health information via the Vision Evaluation
Report, Form MCSA-5871. The privacy risks and effects associated with
this rule are not unique and have been addressed previously by the DOT/
FMCSA 009--National Registry of Certified Medical Examiners system of
records notice published on October 4, 2019 (84 FR 53211).\31\ The DOT
Chief Privacy Officer will determine whether a new system of records
notice for this rule is required.
---------------------------------------------------------------------------
\31\ Available at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices (last accessed Sept. 21,
2021).
---------------------------------------------------------------------------
Before an individual may be medically certified under the
alternative vision standard adopted in this rule, the individual must
have a vision evaluation conducted by an ophthalmologist or
optometrist. The ophthalmologist or optometrist records the findings of
the vision evaluation and provides specific medical opinions on
[[Page 3417]]
the new Vision Evaluation Report, Form MCSA-5871. Then, an ME performs
a physical qualification examination and uses the information provided
on the report to determine whether the individual meets the alternative
vision standard. The Vision Evaluation Report, Form MCSA-5871, is used
exclusively as part of the physical qualification process. It collects
only the information that is necessary for the ME to determine whether
an individual meets the alternative vision standard and may be
medically certified.
The Vision Evaluation Report, Form MCSA-5871, provides a means for
healthcare professionals to exchange information about an individual
for purposes of regulatorily required medical certification to operate
a CMV. The report promotes uniform and consistent communication between
ophthalmologists or optometrists and the certifying MEs. This is the
same type of communication that occurs when the ME needs to follow up
with an individual's primary care provider regarding the individual's
health and exchanges information. Therefore, no new category of medical
or privacy information is generated because of this rule.
The Agency expects that the Vision Evaluation Report, Form MCSA-
5871, will be safeguarded along with all the other medical information
that these healthcare providers retain. The report must be treated and
retained as part of the Medical Examination Report Form, MCSA-5875, in
the ME's medical records for the individual. The report must be
retained by the ME for at least 3 years from the date of the physical
qualification examination. The Vision Evaluation Report, Form MCSA-
5871, is provided to FMCSA only upon request if there is an
investigation or audit. Therefore, this rule provides a privacy-
positive outcome because it results in less sensitive data being held
by the Agency. There is privacy risk not controlled by the Agency
because the Vision Evaluation Report, Form MCSA-5871, is retained by
MEs. However, as healthcare providers, MEs are required to retain and
disclose medical information and personally identifiable information in
accordance with applicable Federal and State privacy laws.
With respect to the requirement that a Vision Evaluation Report,
Form MCSA-5871, must be completed as part of the new alternative vision
standard, the Agency has completed a Privacy Threshold Assessment to
evaluate the risks and effects the requirement has on collecting,
storing, and sharing personally identifiable information and protected
health information.
With respect to the requirement for a road test as part of the
alternative vision standard, the Agency also has completed a Privacy
Threshold Assessment to evaluate the risks and effects the requirement
has on collecting, storing, and sharing personally identifiable
information.
I. E.O. 13175 (Indian Tribal Governments)
This rule does not have Tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it does not have a substantial direct effect on one or more Indian
Tribes, on the relationship between the Federal Government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes.
J. National Environmental Policy Act of 1969
FMCSA analyzed this final rule pursuant to the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
determined this action is categorically excluded from further analysis
and documentation in an environmental assessment or environmental
impact statement under FMCSA Order 5610.1 (69 FR 9680 (Mar. 1, 2004)),
Appendix 2, paragraph 6.z. The content in this rule is covered by the
categorical exclusions in paragraph 6.z.(1) regarding the minimum
qualifications for individuals who drive CMVs, and in paragraph 6.z.(2)
regarding the minimum duties of motor carriers with respect to the
qualifications of their drivers. In addition, the rule does not have
any effect on the quality of the environment.
List of Subjects in 49 CFR Part 391
Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor
carriers, Reporting and recordkeeping requirements, Safety,
Transportation.
Accordingly, FMCSA amends 49 CFR part 391 as follows:
PART 391--QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE
(LCV) DRIVER INSTRUCTORS
0
1. The authority citation for part 391 continues to read as follows:
Authority: 49 U.S.C. 504, 508, 31133, 31136, 31149, 31502; sec.
4007(b), Pub. L. 102-240, 105 Stat. 1914, 2152; sec. 114, Pub. L.
103-311, 108 Stat. 1673, 1677; sec. 215, Pub. L. 106-159, 113 Stat.
1748, 1767; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; secs.
5403 and 5524, Pub. L. 114-94, 129 Stat. 1312, 1548, 1560; sec. 2,
Pub. L. 115-105, 131 Stat. 2263; and 49 CFR 1.87.
0
2. Amend Sec. 391.31 by:
0
a. In paragraph (f), removing the entries ``Social Security No'',
``Operator's or Chauffeur's License No'', and ``State'' in the
Certification of Road Test form; and
0
b. Adding paragraph (h).
The addition reads as follows:
Sec. 391.31 Road test.
* * * * *
(h) The information collection requirements of this section have
been reviewed by the Office of Management and Budget (OMB) pursuant to
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and have
been assigned OMB control number 2126-0072.
0
3. Revise Sec. 391.41(b)(10) to read as follows:
Sec. 391.41 Physical qualifications for drivers.
* * * * *
(b) * * *
(10)(i) 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; or
(ii) Meets the requirements in Sec. 391.44, if the person does not
satisfy, with the worse eye, either the distant visual acuity standard
with corrective lenses or the field of vision standard, or both, in
paragraph (b)(10)(i) of this section;
* * * * *
0
4. Revise Sec. 391.43(b)(1) to read as follows:
Sec. 391.43 Medical examination; certificate of physical
examination.
* * * * *
(b) * * *
(1) A licensed ophthalmologist or licensed optometrist may perform
the part of the medical examination that involves visual acuity, field
of vision, and the ability to recognize colors as specified in Sec.
391.41(b)(10).
* * * * *
0
5. Add Sec. 391.44 to read as follows:
[[Page 3418]]
Sec. 391.44 Physical qualification standards for an individual who
does not satisfy, with the worse eye, either the distant visual acuity
standard with corrective lenses or the field of vision standard, or
both.
(a) General. An individual who does not satisfy, with the worse
eye, either the distant visual acuity standard with corrective lenses
or the field of vision standard, or both, in Sec. 391.41(b)(10)(i) is
physically qualified to operate a commercial motor vehicle in
interstate commerce provided:
(1) The individual meets the other physical qualification standards
in Sec. 391.41 or has an exemption or skill performance evaluation
certificate, if required; and
(2) The individual has the vision evaluation required by paragraph
(b) of this section and the medical examination required by paragraph
(c) of this section.
(b) Evaluation by an ophthalmologist or optometrist. Prior to the
examination required by Sec. 391.45 or the expiration of a medical
examiner's certificate, the individual must be evaluated by a licensed
ophthalmologist or licensed optometrist.
(1) During the evaluation of the individual, the ophthalmologist or
optometrist must complete the Vision Evaluation Report, Form MCSA-5871.
(2) Upon completion of the Vision Evaluation Report, Form MCSA-
5871, the ophthalmologist or optometrist must sign and date the Report
and provide the ophthalmologist or optometrist's full name, office
address, and telephone number on the Report.
(c) Examination by a medical examiner. At least annually, an
individual who does not satisfy, with the worse eye, either the distant
visual acuity standard with corrective lenses or the field of vision
standard, or both, in Sec. 391.41(b)(10)(i) must be medically examined
and certified by a medical examiner as physically qualified to operate
a commercial motor vehicle in accordance with Sec. 391.43. The
examination must begin not more than 45 days after an ophthalmologist
or optometrist signs and dates the Vision Evaluation Report, Form MCSA-
5871.
(1) The medical examiner must receive a completed Vision Evaluation
Report, Form MCSA-5871, signed and dated by an ophthalmologist or
optometrist for each required examination. This Report shall be treated
and retained as part of the Medical Examination Report Form, MCSA-5875.
(2) The medical examiner must determine whether the individual
meets the physical qualification standards in Sec. 391.41 to operate a
commercial motor vehicle. In making that determination, the medical
examiner must consider the information in the Vision Evaluation Report,
Form MCSA-5871, signed by an ophthalmologist or optometrist and,
utilizing independent medical judgment, apply the following standards
in determining whether the individual may be certified as physically
qualified to operate a commercial motor vehicle.
(i) The individual is not physically qualified to operate a
commercial motor vehicle if, in the better eye, the distant visual
acuity is not at least 20/40 (Snellen), with or without corrective
lenses, and the field of vision is not at least 70[deg] in the
horizontal meridian.
(ii) The individual is not physically qualified to operate a
commercial motor vehicle if the individual is not able to recognize the
colors of traffic signals and devices showing standard red, green, and
amber.
(iii) The individual is not physically qualified to operate a
commercial motor vehicle if the individual's vision deficiency is not
stable.
(iv) The individual is not physically qualified to operate a
commercial motor vehicle if sufficient time has not passed since the
vision deficiency became stable to allow the individual to adapt to and
compensate for the change in vision.
(d) Road test. (1) Except as provided in paragraphs (d)(3), (4),
and (5) of this section, an individual physically qualified under this
section for the first time shall not drive a commercial motor vehicle
until the individual has successfully completed a road test subsequent
to physical qualification and has been issued a certificate of driver's
road test in accordance with Sec. 391.31. An individual physically
qualified under this section for the first time must inform the motor
carrier responsible for completing the road test under Sec. 391.31(b)
that the individual is required by paragraph (d) of this section to
have a road test. The motor carrier must conduct the road test in
accordance with Sec. 391.31(b) thorough (g).
(2) For road tests required by paragraph (d)(1) of this section,
the provisions of Sec. 391.33 for the equivalent of a road test do not
apply. If an individual required to have a road test by paragraph
(d)(1) of this section successfully completes the road test and is
issued a certificate of driver's road test in accordance with Sec.
391.31, then any otherwise applicable provisions of Sec. 391.33 will
apply thereafter to such individual.
(3) An individual physically qualified under this section for the
first time is not required to complete a road test in accordance with
Sec. 391.31 if the motor carrier responsible for completing the road
test under Sec. 391.31(b) determines the individual possessed a valid
commercial driver's license or non-commercial driver's license to
operate, and did operate, a commercial motor vehicle in either
intrastate commerce or in interstate commerce excepted by Sec.
390.3T(f) of this subchapter or Sec. 391.2 from the requirements of
this subpart with the vision deficiency for the 3-year period
immediately preceding the date of physical qualification under this
section for the first time.
(i) The individual must certify in writing to the motor carrier the
date the vision deficiency began.
(ii) If the motor carrier determines the individual possessed a
valid commercial driver's license or non-commercial driver's license to
operate, and did operate, a commercial motor vehicle in either
intrastate commerce or in interstate commerce excepted by either Sec.
390.3T(f) of this subchapter or Sec. 391.2 from the requirements of
this subpart with the vision deficiency for the 3-year period
immediately preceding the date of physical qualification in accordance
with this section for the first time, the motor carrier must--
(A) Prepare a written statement to the effect that the motor
carrier determined the individual possessed a valid license and
operated a commercial motor vehicle in intrastate or in the specific
excepted interstate commerce (as applicable) with the vision deficiency
for the 3-year period immediately preceding the date of physical
qualification in accordance with this section for the first time and,
therefore, is not required by paragraph (d) of this section to complete
a road test;
(B) Give the individual a copy of the written statement; and
(C) Retain in the individual's driver qualification file the
original of the written statement and the original, or a copy, of the
individual's certification regarding the date the vision deficiency
began.
(4) An individual physically qualified under this section for the
first time is not required to complete a road test in accordance with
Sec. 391.31 if the individual held on March 22, 2022, a valid
exemption from the vision standard in Sec. 391.41(b)(10)(i) issued by
FMCSA under 49 CFR part 381. Such an individual is not required to
inform the motor carrier that the individual is excepted from the
requirement in paragraph (d)(1) of this section to have a road test.
(5) An individual physically qualified under this section for the
first time is
[[Page 3419]]
not required to complete a road test in accordance with Sec. 391.31 if
the individual was medically certified on March 22, 2022, under the
provisions of Sec. 391.64(b) for drivers who participated in a
previous vision waiver study program. Such an individual is not
required to inform the motor carrier that the individual is excepted
from the requirement in paragraph (d)(1) of this section to have a road
test.
0
6. Amend Sec. 391.45 by:
0
a. Revising paragraph (b);
0
b. Redesignating paragraphs (f) and (g) as paragraphs (g) and (h),
respectively; and
0
c. Adding a new paragraph (f).
The revision and addition read as follows:
Sec. 391.45 Persons who must be medically examined and certified.
* * * * *
(b) Any driver who has not been medically examined and certified as
qualified to operate a commercial motor vehicle during the preceding 24
months, unless the driver is required to be examined and certified in
accordance with paragraph (c), (d), (e), (f), (g), or (h) of this
section;
* * * * *
(f) Any driver who does not satisfy, with the worse eye, either the
distant visual acuity standard with corrective lenses or the field of
vision standard, or both, in Sec. 391.41(b)(10)(i) and who has
obtained a medical examiner's certificate under the standards in Sec.
391.44, if such driver's most recent medical examination and
certification as qualified to drive did not occur during the preceding
12 months;
* * * * *
0
7. Revise Sec. 391.51(b)(3) to read as follows:
Sec. 391.51 General requirements for driver qualification files.
* * * * *
(b) * * *
(3) The certificate of driver's road test issued to the driver
pursuant to Sec. 391.31(e), a copy of the license or certificate which
the motor carrier accepted as equivalent to the driver's road test
pursuant to Sec. 391.33, or the original of the written statement
providing that the motor carrier determined the driver is not required
by Sec. 391.44(d) to complete a road test pursuant to Sec.
391.44(d)(3)(ii)(A) and the original, or a copy, of the driver's
certification required by Sec. 391.44(d)(3)(i);
* * * * *
0
8. Amend Sec. 391.64 by revising paragraph (b) introductory text and
adding paragraph (b)(4) to read as follows:
Sec. 391.64 Grandfathering for certain drivers who participated in a
vision waiver study program.
* * * * *
(b) Until March 22, 2022, the provisions of Sec. 391.41(b)(10) do
not apply to a driver who was a participant in good standing on March
31, 1996, in a waiver study program concerning the operation of
commercial motor vehicles by drivers with visual impairment in one eye;
provided:
* * * * *
(4) On March 22, 2022, the provisions of paragraph (b) of this
section are no longer in effect, and any medical examiner's certificate
issued under Sec. 391.43 on the basis that the driver is qualified by
operation of the provisions of paragraph (b) of this section, related
to drivers with visual impairment in one eye, is void.
Appendix A to Part 391--[Amended]
0
9. Remove and reserve paragraph II.J. of appendix A to part 391.
Issued under the authority of delegation in 49 CFR 1.87.
Meera Joshi,
Deputy Administrator.
[FR Doc. 2022-01021 Filed 1-20-22; 8:45 am]
BILLING CODE 4910-EX-P