Qualifications of Drivers; Vision Standard |
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James W. Deck
Federal Motor Carrier Safety Administration
12 January 2021
[Federal Register Volume 86, Number 7 (Tuesday, January 12, 2021)]
[Proposed Rules]
[Pages 2344-2372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28848]
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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), DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: FMCSA proposes to amend its regulations to permit individuals
who cannot meet either the current distant visual acuity or field of
vision standard, or both, in one eye to be physically qualified to
operate a commercial motor vehicle (CMV) in interstate commerce.
Currently, such individuals are prohibited from driving CMVs in
interstate commerce unless they obtain an exemption from FMCSA. The
Agency proposes an alternative vision standard for physical
qualification that, if adopted, would replace the current vision
exemption program as a basis for establishing the physical
qualification determination for these individuals.
DATES: You must submit comments on this notice of proposed rulemaking
(NPRM) to FMCSA on or before March 15, 2021. Comments on the collection
of information must be received on or before March 15, 2021.
ADDRESSES: You may submit comments on this NPRM identified by docket
number FMCSA-2019-0049 using any one of the following methods:
Federal eRulemaking Portal: www.regulations.gov.
Fax: (202) 493-2251.
Mail: Docket Operations, U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590-0001.
Hand Delivery: Docket Operations, U.S. Department of
Transportation, West Building Ground Floor, 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.
[[Page 2345]]
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' heading under
the SUPPLEMENTARY INFORMATION section below for instructions regarding
submitting comments, including collection of information comments for
the Office of Information and Regulatory Affairs (OIRA) at the Office
of Management and Budget (OMB).
FOR FURTHER INFORMATION CONTACT: If you have questions about this
proposed rule, contact Ms. Christine A. Hydock, Chief, Medical Programs
Division, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590-0001,
by telephone at (202) 366-4001, or by email at fmcsamedical@dot.gov. If
you have questions about viewing or submitting material to the docket,
call DOT Docket Operations, (202) 366-9826.
SUPPLEMENTARY INFORMATION: This NPRM is organized as follows.
I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
D. Waiver of Advance Notice of Proposed Rulemaking
E. Comments on the Collection of Information
II. Abbreviations, Acronyms, and Symbols
III. Executive Summary
A. Purpose of the Amendments
B. Summary of the Major Provisions
C. Benefits and Costs
IV. Legal Basis for the Rulemaking
V. Background
A. Current Vision Standard
B. Vision Waiver Study Program and Grandfathered Drivers
C. Federal Vision Exemption Program--1998 to the Present
VI. Assessments of the Vision Standards, Waivers, and Exemptions
VII. Rationale for Proposed Qualification Standard
A. Individuals Adapt to and Compensate for Vision Loss
B. MEs Would Make the Qualification Determination
C. Review of an Individual's Safety Performance Would Continue
VIII. Discussion of Proposed Rule
A. Proposed Physical Qualification Process
B. Road Test in Accordance With 49 CFR 391.31
C. Elimination of Vision Exemption Program and Grandfather
Provisions
D. Change to the Medical Examination Process in 49 CFR
391.43(b)(1)
E. Benefits of the Proposal to Drivers
IX. Section-by-Section Analysis
A. Regulatory Provisions
B. Guidance Statements and Interpretations
X. International Impacts
XI. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563
(Improving Regulation and Regulatory Review), and DOT Regulations
B. E.O. 13771 (Reducing Regulation and Controlling Regulatory
Costs)
C. Congressional Review Act
D. Regulatory Flexibility Act (Small Entities)
E. Assistance for Small Entities
F. Unfunded Mandates Reform Act of 1995
G. Paperwork Reduction Act (Collection of Information)
H. E.O. 13132 (Federalism)
I. Privacy
J. E.O. 13175 (Indian Tribal Governments)
K. National Environmental Policy Act of 1969
I. Public Participation and Request for Comments
FMCSA encourages you to participate in this rulemaking by
submitting comments and related materials. Where possible, please
provide scientific, peer-reviewed articles to support your comments.
A. Submitting Comments
If you submit comments, please include the docket number for this
rulemaking (FMCSA-2019-0049), indicate the heading of the specific
section of this document to which each comment applies, and provide a
reason for each suggestion or recommendation. You may submit your
comments and material online or by fax, mail, or hand delivery, but
please use only one of these means. FMCSA recommends that you include
your name and a mailing address, an email address, or a phone number in
the body of your document so the Agency can contact you if it has
questions regarding your submission.
To submit your comment online, go to www.regulations.gov, type the
docket number (FMCSA-2019-0049) in the ``Keyword'' box and click
``Search.'' When the new screen appears, click the ``Comment Now!''
button and type your comment into the text box in the following screen.
Choose whether you are submitting your comment as an individual or on
behalf of a third party, and click ``Submit.''
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
Confidential Business Information: Confidential Business
Information (CBI) is commercial or financial information that is both
customarily and actually treated as private by its owner. Under the
Freedom of Information Act (5 U.S.C. 552), CBI is exempt from public
disclosure. If your comments responsive to this NPRM contain commercial
or financial information that is customarily treated as private, that
you actually treat as private, and that is relevant or responsive to
this NPRM, it is important that you clearly designate the submitted
comments as CBI. FMCSA will treat such marked submissions as
confidential under the Freedom of Information Act, and they will not be
placed in the public docket for this rulemaking. Please mark each page
of your submission that constitutes CBI as ``PROPIN'' to indicate it
contains proprietary information. Submissions containing CBI should be
sent to Mr. Brian Dahlin, Chief, Regulatory Analysis Division, FMCSA,
1200 New Jersey Avenue SE, Washington, DC 20590. Any comments FMCSA
receives that are not specifically designated as CBI will be placed in
the public docket for this rulemaking.
FMCSA will consider all comments and material received during the
comment period and may make changes based on your comments. FMCSA may
issue a final rule at any time after the close of the comment period.
B. Viewing Comments and Documents
To view comments and any document mentioned in this preamble as
being available in the docket, go to www.regulations.gov, insert the
docket number (FMCSA-2019-0049) in the ``Keyword'' box, and click
``Search.'' Next, click the ``Open Docket Folder'' button and choose
the document listed to review. If you do not have access to the
internet, you may view the docket online by visiting Docket Operations
in Room W12-140 on the ground floor of the DOT West Building, 1200 New
Jersey Avenue SE, Washington, DC 20590, 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 Docket Operations.
C. Privacy Act
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice DOT/ALL 14--Federal Docket Management System (FDMS),
which can be reviewed at https://www.transportation.gov/privacy.
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D. Waiver of Advance Notice of Proposed Rulemaking
Under 49 U.S.C. 31136(g)(1), FMCSA is required to publish an
advance notice of proposed rulemaking or conduct a negotiated
rulemaking if a proposed rule is likely to lead to the promulgation of
a major rule.\1\ As this proposed rule is not likely to result in the
promulgation of a major rule, the Agency is not required to issue an
advance notice of proposed rulemaking or to proceed with a negotiated
rulemaking.
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\1\ A ``major rule'' means any rule that the Administrator of
OIRA at 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)).
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E. Comments on the Collection of Information
Written comments and recommendations for the proposed information
collections discussed in this NPRM should be sent to FMCSA within 60
days of publication using any of the methods described in ``Public
Participation and Request for Comments'' above.
II. Abbreviations, Acronyms, and Symbols
ATA American Trucking Associations, Inc.
CBI Confidential Business Information
CDL Commercial Driver's License
CFR Code of Federal Regulations
CMV Commercial Motor Vehicle
DOT U.S. Department of Transportation
E.O. Executive Order
FHWA Federal Highway Administration
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FR Federal Register
GES General Estimates System
ICR Information Collection Request
Id. Idem--the same author or work
MCMIS Motor Carrier Management Information System
ME Medical Examiner
MEC Medical Examiner's Certificate, Form MCSA-7876
MRB Medical Review Board
NAICS North American Industry Classification System
National Registry National Registry of Certified Medical Examiners
NPRM Notice of Proposed Rulemaking
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
RFA Regulatory Flexibility Act
SBA Small Business Administration
Secretary Secretary of Transportation
Sec. Section
TEA-21 Transportation Equity Act for the 21st Century
U.S.C. United States Code
III. Executive Summary
A. Purpose of the Amendments
FMCSA proposes to amend its regulations to permit an individual who
cannot meet either the current distant visual acuity or field of vision
standard, or both, in one eye to be physically qualified to operate a
CMV in interstate commerce under specified conditions. The individual
would need to meet the proposed alternative vision standard and FMCSA's
other physical qualification standards. In addition, with limited
exceptions, individuals physically qualified under the alternative
standard for the first time would complete a road test before operating
a CMV in interstate commerce. The proposed action would eliminate 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. Medical
professionals would evaluate and make medical qualification
determinations instead of FMCSA, as in the current exemption program.
Motor carriers would administer the road tests. The proposed
alternative vision standard would enhance employment opportunities
while remaining consistent with FMCSA's safety mission.
B. Summary of the Major Provisions
The proposed alternative vision standard is based on
recommendations from FMCSA's Medical Review Board (MRB). The proposed
physical qualification process is analogous to the regulatory framework
FMCSA adopted in Sec. 391.46 for individuals with insulin-treated
diabetes mellitus (see 83 FR 47486, September 19, 2018). Prior to that
rulemaking, such individuals were prohibited from driving CMVs in
interstate commerce unless they obtained an exemption from FMCSA. Like
the approach in the rule for insulin-treated diabetes mellitus, after
the public comment period for this NPRM closes, FMCSA will ask the MRB
to review all comments from medical professionals and associations. If
after that review the MRB makes material changes to its prior
recommendations, FMCSA will publish a Federal Register notice
announcing the availability of the new MRB recommendations and request
public comment specific to those recommendations.
The proposed rule provides an alternative vision standard for
individuals who cannot meet either the current FMCSA distant visual
acuity or field of vision standard, or both, in one eye and, if
adopted, would replace the current vision exemption program as a basis
for determining the physical qualification of such individuals to
operate a CMV. The proposed action would ensure that these individuals
are physically qualified to operate a CMV safely. In addition, the
proposed process would create a clear and consistent framework to
assist certified medical examiners (ME) with making a physical
qualification determination that is equally as effective as a program
based entirely on granting exemptions under 49 U.S.C. 31315(b).
Just as in the alternative standard for insulin-treated diabetes
mellitus, the alternative vision standard would involve a two-step
process for physical qualification. 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, which incorporates the recommendations of the
MRB. 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. If the ME determines that the
individual meets the physical qualification standards, the ME could
issue a Medical Examiner's Certificate (MEC), Form MCSA-5876, for a
maximum of 12 months. This approach of MEs making the physical
qualification determination, instead of FMCSA as in the current
exemption program, is consistent with Congress's directive in 49 U.S.C.
31149(d) to have trained and certified MEs determine the individual's
physical qualification to operate a CMV.
In making the physical qualification determination, the ME would
consider the information in the Vision Evaluation Report, Form MCSA-
5871, and utilize independent medical judgment to apply four standards.
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 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 to
adapt to and compensate for the change in vision.
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It is well recognized in the literature that individuals with
vision loss in one eye can and do develop compensatory viewing behavior
to mitigate the vision loss. Therefore, if an individual meets the
proposed vision standard, the Agency expects there will be no adverse
impact on safety due to the individual's vision. That is, once an
individual's vision is stable and the individual has adapted to and
compensated for the change in vision, the loss in vision is not likely
to play a significant role in whether the individual can drive a CMV
safely.
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 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. Motor carriers would conduct the
road test in accordance with the road test already required by Sec.
391.31. FMCSA finds that a road test would be 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 3-year intrastate driving experience
criterion.
The proposed standard takes a performance-based approach. The
standard emphasizes that the individual has developed the skills to
adapt to and compensate for the vision loss once it has been deemed
stable by a medical professional, and that the individual has
demonstrated the skills to operate a CMV safely. The ME would ensure
the driver is physically qualified to operate a CMV in accordance with
the physical qualification standards. With limited exceptions, motor
carriers would conduct a road test for individuals to ensure they
possess the skills needed to operate a CMV safely with the vision
deficiency.
The Federal Highway Administration (FHWA), the predecessor agency
to FMCSA, and FMCSA have continuously monitored the impact of the
vision waiver study \2\ and the exemption programs to ensure they cause
no adverse impact on safety. The proposed alternative vision standard
would adopt the major vision criteria of the existing Federal vision
exemption program, which were also used in the preceding Federal vision
waiver study program since the early 1990s, and would modify other
criteria from the exemption program. Based on nearly 30 years of
experience with these programs, individuals who meet the proposed
alternative vision standard will be at least as safe as the general
population of CMV drivers. This experience 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.
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\2\ FHWA conducted the vision waiver study program from July
1992 through March 31, 1996. Drivers who participated in the program
and held valid waivers from the vision standard at the program's end
could continue to operate in interstate commerce under grandfather
provisions in 49 CFR 391.64. The vision waiver study program and
grandfather provisions are discussed in section V.B. below.
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If the proposed action is adopted, the 2,566 vision exemption
holders \3\ would no longer require an exemption. Accordingly, these
drivers would be relieved of the time and paperwork burden associated
with applying for or renewing an exemption.\4\ The proposed rule could
increase employment opportunities because potential applicants 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. In addition, 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 to
operating in interstate commerce sooner.
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\3\ FMCSA data as of July 2, 2019.
\4\ As discussed below in the Paperwork Reduction Act section
XI.G. with respect to the information collection titled ``Medical
Qualification Requirements,'' FMCSA attributes 2,236 annual burden
hours at a cost of $69,136 for drivers to request and maintain a
vision exemption. The proposed rule would eliminate this entire
burden.
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FMCSA proposes that the approximately 1,900 individuals physically
qualified under the grandfather provisions in Sec. 391.64(b) would
have 1 year after the effective date of any final rule to comply with
the rule. During that transition year, grandfathered individuals could
elect to seek physical qualification through the final rule or Sec.
391.64. This transition year would provide time to learn the new
process for individuals whose MEC, Form MCSA-5876, expires near the
time any final rule becomes effective. However, 1 year after the
effective date of the final rule all MECs, Form MCSA-5876, issued under
Sec. 391.64(b) would become void.
Similarly, the 2,566 vision exemption holders would have 1 year
after the effective date of any final rule to comply with the rule, at
which time all exemptions issued under 49 U.S.C. 31315(b) would become
void. Drivers who hold a vision exemption would be notified by letter
with details of the transition to the new standard.
C. Benefits and Costs
FMCSA estimates that the proposed rule would reduce barriers to
entry for current and future CMV drivers. The 2,566 drivers holding
vision exemptions would no longer have to apply for an exemption, and
potential driver applicants 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 would be
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 proposed rule would result
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 $47,000
for the road test. The Agency does not anticipate any negative impacts
on safety.
The proposed rulemaking, if finalized, would result in reduced
costs and, therefore, would be a deregulatory action under Executive
Order (E.O.) 13771, Reducing Regulation and Controlling Regulatory
Costs. The present value of the cost savings, measured on an infinite
time horizon at a 7 percent discount rate, expressed in 2016 dollars,
would be $14.9 million. On an annualized basis, these cost savings
would be $1 million.
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), 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.
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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 proposed rule would not
impose any ``responsibilities . . . on operators of [CMVs that would]
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 also does not
anticipate that drivers would be coerced to operate a vehicle because
of this rulemaking (section 31136(a)(5)).
Additionally, in 2005, Congress authorized the creation of the MRB,
composed 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, prior to prescribing any regulations, FMCSA must consider
their ``costs and benefits'' (49 U.S.C. 31136(c)(2)(A) and 31502(d)).
Those factors are discussed in the Regulatory Analyses section of this
NPRM.
V. Background
A. Current Vision Standard
FMCSA's mission is to reduce crashes, injuries, and fatalities
involving large trucks and buses. As discussed above, FMCSA is
authorized by statute to establish minimum physical qualification
standards for drivers of CMVs operating in interstate commerce. To
ensure the physical qualification of CMV drivers, the Agency has
established several standards. As vision plays an important role in the
driving task, one of the standards provides vision requirements (see 49
CFR 391.41(b)(10)).
FHWA adopted the current vision standard in 1970 (35 FR 6458, 6463,
April 22, 1970). Under this standard, an individual is physically
qualified to drive a CMV if the individual 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 degrees in the horizontal meridian in each eye, and the
ability to recognize the colors of traffic signals and devices showing
standard red, green, and amber (49 CFR 391.41(b)(10)). This standard
has not changed since it became effective on January 1, 1971.
FMCSA's physical qualification standards cover 13 areas that relate
directly to the driving function. With respect to most of the
standards, an individual's qualification to drive is determined by an
ME who is knowledgeable about the on-the-job functions performed by a
commercial driver and whether the driver has a condition that would
interfere with the operation of a CMV. In the case of three standards,
including vision, the standard is absolute and provides no discretion
to the ME. Thus, any individual who does not meet the vision standard
in its entirety cannot be physically qualified to drive a CMV in
interstate commerce.
B. Vision Waiver Study Program and Grandfathered Drivers
On March 25, 1992, FHWA published notice of its intent to accept
applications from CMV drivers for temporary waivers of certain
requirements contained in the vision standard, pursuant to the waiver
provision of former 49 U.S.C. 31136(e) (57 FR 10295). To avoid any
adverse impact on highway safety, FHWA outlined specific criteria that
applicants had to meet to receive the vision waiver. The waiver
program's goal was to provide objective data to be considered in a
future rulemaking that would explore the feasibility of relaxing the
absolute vision standard in favor of a more individualized standard. To
do so, FHWA invited CMV drivers who met the vision standard to
participate in a study comparing a group of experienced drivers who did
not meet the vision standard with a control group of drivers who did
meet the standard. Subsequently, on June 3, 1992, FHWA modified some of
the program's conditions, clarified some of its details, and requested
comments on the proposed vision waiver study program (57 FR 23370, June
3, 1992).
In July 1992, FHWA announced its decision to issue waivers of the
vision requirements and published the final criteria for the vision
waiver study program (57 FR 31458, July 16, 1992). FHWA concluded that
the program met the statutory requirements for granting waivers because
the program was in the public interest and included conditions that
allowed FHWA to find that such waivers were consistent with the safe
operation of CMVs.\5\ FHWA reiterated that the vision waiver study
program would provide the empirical data necessary to evaluate the
relationships between specific vision deficiencies and the operation of
CMVs.
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\5\ Section 206(f) of the Motor Carrier Safety Act of 1984
provides that any Federal Motor Carrier Safety Regulation (FMCSR)
can be waived if ``such waiver is not contrary to the public
interest and is consistent with the safe operation of [CMVs].''
Public Law 98-554, 98 Stat. 2832, 2835, (October 30, 1984),
originally codified at 49 U.S.C. App. 2505 and then at former 49
U.S.C. 31136(e).
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Under the vision waiver study program, FHWA issued waivers to
drivers following an individual determination of each driver's
capability to operate a CMV safely. The determination included a review
of each individual's vital statistics, experience operating CMVs,
anticipated post-waiver operations, and status of driving privilege as
recorded on the licensing State's motor vehicle record for the past 3
years. The determination also included a review of an opinion by an
ophthalmologist or optometrist attesting to the visual acuity of each
driver, that the visual acuity had not worsened since the last vision
examination, and that the driver was able to perform the driving tasks
required to operate a CMV. The waiver study program required visual
acuity of at least 20/40 (Snellen), corrected or uncorrected, in the
better eye, as well as satisfaction of the other applicable vision
standard requirements (i.e., field of vision of at least 70 degrees in
the horizontal meridian in the better eye and the ability to recognize
red, green, and amber colors).
Drivers eligible for vision waivers had to have driving records
that surpassed those of their peers who met the vision requirements.
FHWA aimed to eliminate unsafe drivers by requiring applicants to have
3 years of intrastate CMV driving experience with the vision deficiency
and a record that showed:
(1) No suspensions or revocations of his or her driver's license
for operating violations in any motor vehicle;
(2) No involvement in a reportable accident in a CMV in which
the applicant was cited for a moving traffic violation;
(3) No convictions for a disqualifying offense, as described in
49 CFR 383.51 (e.g., driving a CMV while under the influence of
alcohol or a controlled substance, leaving the scene of an accident
involving a CMV, or the
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commission of a felony involving the use of a CMV), or more than one
serious traffic violation, as that term was defined in Sec. 383.5
at the applicable time \6\ (e.g., excessive speeding, reckless
driving, improper or erratic lane changes, following the vehicle
ahead too closely, or a violation arising in connection with a
fatality, all while driving a CMV); and
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\6\ Section 383.5 was amended to remove the definition of a
``serious traffic violation'' effective July 8, 2011 (76 FR 26854,
26878, May 9, 2011). Section 383.51(c) contains a list of serious
traffic violations and the periods for which an individual is
disqualified from operating a CMV.
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(4) No more than two convictions for any other moving traffic
violations while driving a CMV.
FHWA accepted 2,686 drivers into the vision waiver study
program.\7\ Once granted a waiver, a driver had to report or submit
certain information to FHWA during the term of the waiver. Each driver
was required to:
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\7\ Sheridan J, and DuLaney A., Qualification of Drivers--
Vision, Diabetes, Hearing and Epilepsy. Final Report, McLean, VA:
Conwal, Inc.; May 30, 1997, p. 7, which is available at https://ntrl.ntis.gov/NTRL/dashboard/searchResults/titleDetail/PB98142649.xhtml (last accessed August 23, 2019) and in the docket.
Note that this report is cited as Conwal, Inc. in this rulemaking.
(1) Report any citation for a moving violation involving the
operation of a CMV;
(2) Report the disposition of such citation;
(3) Report any accident involvement while operating a CMV;
(4) Submit documentation of an annual evaluation by an
ophthalmologist or optometrist; and
(5) Submit monthly driving reports that included the number of
miles driving a CMV during the preceding month (with daylight and
nighttime hours reported separately) and the number of days a CMV
was not operated during the preceding month.
FHWA periodically verified the waived drivers' reported accidents and
citations through State motor vehicle records and the waived drivers'
medical reports.
On August 2, 1994, the United States Court of Appeals for the
District of Columbia Circuit found that FHWA's determination that the
vision waiver study program would not adversely affect the safe
operation of CMVs lacked empirical support in the record (Advocates for
Highway and Auto Safety v. FHWA, 28 F.3d 1288, 1294 (D.C. Cir. 1994)).
Accordingly, the court found that FHWA failed to meet the exacting
statutory requirements to grant a waiver. Consequently, the court
concluded that FHWA's adoption of the waiver program was contrary to
law and vacated and remanded the decision to FHWA.
On November 17, 1994, FHWA published notice of its final
determination to continue the vision waiver study program through March
31, 1996, and announced a change in the research plan (59 FR 59386).
FHWA determined that issuing waivers to the drivers through the
conclusion of the program was consistent with the public interest and
the safe operation of CMVs. FHWA based its decision, in part, on data
collected on the group of waived drivers indicating that they had
performed and continued to perform more safely than drivers in the
general population of commercial drivers. As discussed above, drivers
were required to have a 3-year safe driving history in intrastate
commerce to participate in the program. A statistical analysis of the
driving performance of individuals participating in the program from
July 1992 to July 1994 revealed the total accident rate of drivers in
the waived group was 1.636 per million vehicle miles traveled compared
to the higher national accident rate of 2.531 per million vehicle miles
traveled (59 FR 59389).\8\
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\8\ FHWA stated that during the same period there were 6 fatal
accidents in which waived drivers were involved, and one more
occurred after June 30, 1994. A review of the police accident
reports, however, revealed that none of the waived drivers was found
to be at fault by the reporting police officer (59 FR 59389).
---------------------------------------------------------------------------
On March 26, 1996, FHWA issued a rule to allow those drivers
participating in the vision waiver study program and holding valid
waivers from the vision standard to continue to operate in interstate
commerce after March 31, 1996 (61 FR 13338). FHWA amended 49 CFR part
391 by adding a new provision at Sec. 391.64 to grant grandfather
rights to these drivers, subject to certain conditions. FHWA required a
physical qualification examination for the grandfathered drivers every
year, rather than every 2 years as required of most other drivers, as
an extra precaution to ensure the continued safe operation of these
drivers. Under Sec. 391.64(b), the grandfathered drivers, like all
other interstate drivers, must be otherwise physically qualified under
Sec. 391.41(b) (including a field of vision of at least 70 degrees in
the horizontal meridian in the better eye and the ability to recognize
red, green, and amber colors). In addition, the grandfathered vision
drivers must obtain an annual vision examination by an ophthalmologist
or optometrist indicating that they have been examined and that the
distant visual acuity in the better eye continues to measure at least
20/40 (Snellen). This information must be submitted to the certifying
ME at the time of the individual's annual physical qualification
examination. Currently, FMCSA checks the driving records of
grandfathered drivers to determine if they continue to operate CMVs
safely.
C. Federal Vision Exemption Program--1998 to the Present
FHWA established the current Federal vision exemption program on
December 8, 1998 (63 FR 67600) following the enactment of amendments to
the statutes governing exemptions made by section 4007 of the
Transportation Equity Act for the 21st Century (TEA-21).\9\ With the
enactment of TEA-21, FHWA was authorized to grant an exemption to
relieve an individual from compliance in whole or in part with certain
regulations if FHWA determined that the exemption would likely achieve
a level of safety equivalent to, or greater than, the level that would
be achieved by complying with the regulation to which the exemption
would apply (49 U.S.C. 31315(b)(1)).
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\9\ Public Law 105-178, 112 Stat. 107, 401, June 9, 1998.
---------------------------------------------------------------------------
FMCSA processes exemption letters of application in accordance with
49 CFR part 381, subpart C. Qualifying individuals may apply for an
exemption from specified provisions of the FMCSRs, including physical
qualification standards specified under Sec. 391.41(b) (see 49 CFR
381.300(c)(3)). Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant
an exemption for up to a 5-year period and may renew an exemption at
the end of the 5-year period. However, FMCSA grants vision exemptions
for up to a 2-year period to align with the maximum duration of a
driver's physical qualification certification. The Agency considers
vision exemptions on a case-by-case basis upon application by CMV
drivers who do not meet either the distant visual acuity or field of
vision standard, or both, of Sec. 391.41(b)(10) in one eye. The Agency
does not grant exemptions for color blindness.
The criteria currently considered when reviewing an application for
a Federal vision exemption have been in place since the program began
in 1998. The vision criteria are consistent with criteria used in the
preceding Federal vision waiver study program that began in July 1992.
As part of the current vision exemption program, there is a
template that CMV drivers can use to prepare a letter of application
for a Federal vision exemption. In addition to the template, there are
two instructional letters for applicants residing in Florida or Indiana
that provide the unique State processes for requesting a copy of a
motor vehicle record.\10\
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\10\ Copies of these documents are in the docket for this
rulemaking and available on FMCSA's website at https://www.fmcsa.dot.gov/medical/driver-medical-requirements/driver-exemption-programs (last accessed October 1, 2019).
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[[Page 2350]]
The template outlines the information and documents drivers should
include to be considered for an exemption. In general, drivers should
submit information relating to vital statistics, experience driving a
CMV (number of years driving, types of vehicles driven, miles driven
per year), and present employment (contact information, types of
vehicles, items transported, driving hours). Drivers also should submit
documentation to support the application, such as a copy of the
driver's license to operate a CMV; an official copy of the driving
record issued by a State; copies of any citations, crash reports, or
court records; a signed statement on letterhead from present or past
employers (or a notarized statement if letterhead is not available);
and a signed statement on letterhead by an ophthalmologist or
optometrist.
Applicants are not permitted to operate a CMV in interstate
commerce during the time in which an application for a new exemption is
pending. The Agency encourages drivers to begin the renewal process
well in advance of an exemption's expiration. In addition, the Agency
provides such drivers with a deadline by which their renewal package
must be complete. Drivers who miss the deadline risk having their
exemptions expire, resulting in a lapse of their permission to operate
a CMV in interstate commerce.
Under the current program, FMCSA considers exemptions from either
the distant visual acuity or field of vision standard, or both, in one
eye only for those individuals who:
(1) Hold a valid license (an intrastate commercial driver's
license (CDL) or a non-CDL license to operate a CMV);
(2) Are at least 21 years old;
(3) Have 3 years of legal CMV driving experience, driving at
least 10 hours per week in intrastate commerce with the vision
deficiency, immediately preceding the date of the application;
(4) Have had a driving record for the 3-year period immediately
preceding the date of application that contains:
(a) No suspensions or revocations of a driver's license for the
operation of any motor vehicle (including a personal vehicle);
(b) No involvement in a crash for which the driver contributed
or received a citation for a moving traffic violation;
(c) No convictions for a disqualifying offense, as defined in
Sec. 383.51(b);
(d) No more than one serious traffic violation, as defined in
Sec. 383.51(c), driving a CMV that disqualified or should have
disqualified the driver in accordance with the driver
disqualification provisions of Sec. 383.51; and
(e) No more than two convictions for any other moving traffic
violations in a CMV.
(5) Provide a signed statement that reads, ``I acknowledge that
I must be otherwise qualified under 49 CFR 391.41(b)(1)-(13) before
I can legally operate a commercial motor vehicle in interstate
commerce'';
(6) Have visual acuity of at least 20/40 (Snellen), corrected or
uncorrected, in the better eye;
(7) Have field of vision, including central and peripheral
fields, of at least 70 degrees in the horizontal meridian in the
better eye utilizing a testing modality that tests to at least 120
degrees in the horizontal (Formal perimetry is required. The doctor
must submit the formal perimetry for each eye and interpret the
results in degrees of field vision.);
(8) Can recognize the colors of traffic control signals and
devices showing red, green, and amber; and
(9) Have been examined in the last 3 months by an
ophthalmologist or optometrist who:
(a) Identifies the vision deficiency;
(b) Defines the nature of the vision deficiency, including how
long the driver has had the deficiency;
(c) States the date of the examination;
(d) Certifies that the vision deficiency is stable; and
(e) Provides an opinion that the driver has sufficient vision to
perform the driving tasks required to operate a CMV.
FMCSA is required to publish a notice in the Federal Register
explaining that a medical exemption request has been submitted to the
Agency for consideration. The notice provides the driver's name, age,
and class of license with issuing State, as well as the specific cause
and duration of the driver's vision deficiency and current distant
visual acuity in at least the better eye. The notice identifies the
provisions from which the individual seeks exemption and the effective
period, and provides an opportunity for public comment. After the 30-
day comment period, FMCSA must publish a notice in the Federal Register
of its decision to approve or deny the request and all the terms and
conditions of any exemption granted.
The Agency imposes the following requirements on drivers who are
granted an exemption from the vision standards in Sec. 391.41(b)(10):
(1) The exempted driver must be examined every year by:
(a) An ophthalmologist or optometrist who attests that the
driver's vision continues to meet the standards of 49 CFR
391.41(b)(10) in the better eye (i.e., that the individual has
distant visual acuity of at least 20/40 (Snellen), field of vision
of at least 70 degrees in the horizontal meridian, and can recognize
red, green, and amber colors); and
(b) An ME who determines that the driver is otherwise qualified
under Sec. 391.41 and provides an MEC, Form MCSA-5876, that
includes a statement that the driver is medically qualified when
accompanied by a Federal vision exemption.
(2) The driver must provide a copy of the ophthalmologist or
optometrist report to the ME at the time of the driver's annual
physical qualification examination.
(3) The driver must keep a copy of the annual MEC, Form MCSA-
5876, in his or her qualification file if the driver is self-
employed or provide a copy to the driver's employer for retention in
the driver's qualification file.
(4) The driver must possess a copy of the exemption and MEC,
Form MCSA-5876, when driving, for presentation to any legally
authorized Federal, State, or local enforcement official.
(5) The driver must obtain and display the appropriate driver's
license from his or her State of domicile and comply with any
restrictions placed thereon regarding use of eyeglasses, mirrors, or
other visual aids.
(6) The driver must report any changes in personal information
(i.e., address, telephone number, employment status) to FMCSA
immediately, as well as changes in the type of vehicle driven.
At any time during the authorized exemption period, the Agency may
require the exempted CMV driver to provide information regarding
driving experience and performance as it relates to citations, crashes,
license suspensions or revocations, and medical status (78 FR 76590,
76591, December 18, 2013).
FMCSA monitors each driver's performance operating a CMV on a
quarterly basis. FMCSA may revoke an exemption immediately if (1) the
driver fails to comply with the terms and conditions of the exemption;
(2) the exemption has resulted in a lower level of safety than was
maintained before the exemption was granted; or (3) continuation of the
exemption is determined by FMCSA to be inconsistent with the goals and
objectives of the FMCSRs (49 CFR 381.330(b)).
On December 18, 2013, FMCSA proposed changes to the eligibility
requirements for the exemption program, including changes to the
driving experience, convictions and violations, and driver statement
criteria (78 FR 76590). After receiving comments that both supported
and opposed the proposed changes, the Agency elected not to revise the
exemption program criteria at that time. As suggested by some comments,
the development of a fuller record in a rulemaking proceeding will
assist the Agency in making an appropriate determination about
modifying the vision standard instead of modifying the exemption
criteria.
FMCSA's October 2017 annual report to Congress on waivers,
exemptions, and pilot programs noted that the vision exemption program
received 1,147 applications and granted 479
[[Page 2351]]
exemptions in Federal fiscal year 2016.\11\ The September 2018 annual
report to Congress noted that the vision exemption program received 793
applications and granted 286 exemptions in Federal fiscal year
2017.\12\
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\11\ FMCSA. Waivers, Exemptions, and Pilot Programs Annual
Report to Congress Fiscal Year 2016, October 2017, p. 3, available
at https://www.fmcsa.dot.gov/mission/policy/reports-congress (last
accessed July 15, 2019) and in the docket.
\12\ FMCSA: Waivers, Exemptions, and Pilot Programs Annual
Report to Congress Fiscal Year 2017, September 2018, p. 3, available
at https://www.fmcsa.dot.gov/mission/policy/reports-congress (last
accessed July 15, 2019) and in the docket.
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As of July 2, 2019, there were 2,566 drivers with active exemptions
issued pursuant to the Federal vision exemption program. From January
2016 through July 2019, the most prevalent reasons for denial of
exemption requests were insufficient intrastate driving experience
(i.e., less than 3 years of experience) and not meeting the vision
standard in the better eye.
VI. Assessments of the Vision Standards, Waivers, and Exemptions
FHWA and FMCSA have a long history of examining the relationship
between the vision standards in Sec. 391.41(b)(10) and the performance
of CMV drivers. Since the early 1990s, FHWA and FMCSA have continuously
monitored the impact of the vision waiver study and vision exemption
programs to ensure they cause no adverse impact on safety. The basis
for this rulemaking is the safety performance of the drivers in these
programs, which is at least as good as that of the general population
of CMV drivers.
Consistent with statutory requirements, the Agency consults with
the MRB and Chief Medical Examiner to establish, review, and revise
physical qualification standards for CMV drivers. FMCSA also engages
these medical professionals to assist with medical and scientific
reports and analyses prepared for the Agency. The reports and analyses
undertaken since 1990 to gather information and evaluate the vision
standards, the waiver study program, and exemption program, as well as
MRB recommendations pertaining to vision, are summarized below and are
available in the docket for this rulemaking.
In November 1991, FHWA received a report titled ``Visual Disorders
and Commercial Drivers'' prepared by the Ketron Division of the
Bionetics Corporation.\13\ The primary objective of this project was to
reassess the adequacy of the Federal vision standards for CMV drivers.
In that regard, the report concluded that a review of the most recent
scientific research that investigated the vision performance of
passenger and commercial drivers ``revealed no conclusive evidence to
support definitive changes to the current standard.'' \14\ The report
found the studies ``were able to demonstrate only weak relationships
between measures of vision and correlates of driver safety.'' \15\ Only
a few studies examined the relationship between the driving performance
record of CMV drivers and their vision performance.\16\
---------------------------------------------------------------------------
\13\ Decina L, Breton M, and Staphlin L., Visual Disorders and
Commercial Drivers (Report No. DTFH61-90-C-00093), Malvern, PA:
Ketron Division of the Bionetics Corp., Washington, DC: FHWA, Office
of Motor Carriers (FHWA-MC-92-003), November 1991, available at
https://ntrl.ntis.gov/NTRL/dashboard/searchResults/titleDetail/PB92143015.xhtml (last accessed August 20, 2019). Note that this
report is cited as ``Ketron'' in this rulemaking.
\14\ Id. at Technical Report Documentation Page (Abstract); see
also p. 15.
\15\ Id. at iv.
\16\ Id. at 15.
---------------------------------------------------------------------------
The project considered the need to exclude drivers with substantial
vision loss only in one eye. Ketron convened a focused workshop
discussion consisting of a panel of doctors, ophthalmologists,
optometrists, professors in academic ophthalmology departments, and
traffic and safety professionals in private industry. ``Most panelists
agreed that the available research results linking driver safety to
lowered acuity in one eye were sufficient to change the current
standard to allow monocular drivers or drivers with vision that is
substantially worse in one eye.'' \17\ However, the panelists did not
reach a consensus.
---------------------------------------------------------------------------
\17\ Id. at 34.
---------------------------------------------------------------------------
The Ketron report noted the difficulties associated with
determining minimum vision criteria. It stated that ``[n]umerous
studies have shown that visual deficits are rarely the primary cause of
major accidents. Typically, many factors are found to contribute.''
\18\ It continued that individuals involved in accidents have already
been screened for visual deficits, which reduces the number of visually
poor drivers on the road. Accordingly, tests of primary visual
capability cannot reasonably be expected to correlate highly with
measures of driver safety or to provide unambiguous cutoff points for
screening out unsafe drivers.
---------------------------------------------------------------------------
\18\ Id. at iv; see also p. 13.
---------------------------------------------------------------------------
In June 1992, FHWA stated that the Ketron project illuminated the
lack of empirical data on the link between vision disorders and CMV
safety (57 FR 23370, June 3, 1992). FHWA proposed the vision waiver
study program to obtain the empirical data that the Ketron project did
not provide. Accordingly, FHWA began the vision waiver study program in
July 1992 that concluded in March 1996.
In May 1997, Conwal, Inc. presented FHWA with the final report
titled ``Qualification of Drivers--Vision, Diabetes, Hearing and
Epilepsy'' \19\ that described the findings of the vision waiver study
program. The program's goal was to determine the associated risk, based
on accident involvement, of allowing CMV drivers who did not meet the
vision standard to drive under a granted waiver in interstate commerce.
FHWA determined that the findings showed the waiver group did not
represent a threat to public safety.
---------------------------------------------------------------------------
\19\ Sheridan J, and DuLaney A., Qualifications of Drivers--
Vision, Diabetes, Hearing and Epilepsy, Final Report, McLean, VA:
Conwal, Inc., May 30, 1997, available at https://ntrl.ntis.gov/NTRL/dashboard/searchResults/titleDetail/PB98142649.xhtml (last accessed
August 23, 2019).
---------------------------------------------------------------------------
The original design of the vision waiver study program was an
observational, nonrandomized study with a prospective cohort structure.
However, the Advocates for Highway and Auto Safety v. FHWA \20\ lawsuit
prevented the implementation of the study, and the study was converted
to a monitoring program to ensure that the public was not exposed to
excessive risk.\21\
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\20\ 28 F.3d 1288, 1294 (D.C. Cir. 1994) (see section V.B. above
for additional information relating to this lawsuit).
\21\ FHWA originally conceived a study that would determine the
associated level of risk of allowing CMV drivers who did not meet
the physical qualification standards relating to vision, diabetes,
epilepsy, and hearing to operate interstate. These conditions were
chosen because the related standards were absolute at the time,
providing no discretion to the ME. Because of the lawsuit, FHWA did
not initiate the hearing and epilepsy waiver study programs.
---------------------------------------------------------------------------
Monitoring focused on comparing the accident rates of the waivered
drivers to rates of a reference group that represented the prevailing
safety level for drivers of large trucks (10,000 pounds or larger) in
the United States. FHWA selected the General Estimates System (GES) as
the best measure of the prevailing national norm relative to large
truck accidents.\22\ A series of seven monitoring reports was completed
during the vision waiver study program to report periodically on the
number of accidents occurring in the group of drivers who were issued
waivers.\23\
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\22\ The GES is a national survey of police accident reports in
the United States conducted by the National Highway Traffic Safety
Administration.
\23\ The seven monitoring reports are included in Appendix 12 of
the May 1997 final report titled ``Qualification of Drivers--Vision,
Diabetes, Hearing and Epilepsy'' by Conwal, Inc.
---------------------------------------------------------------------------
The seventh monitoring report in the series was completed in
February 1996
[[Page 2352]]
and reported driving behavior for the drivers who were still in the
program as of November 1995. From August 1992 to November 1995, 510
total accidents (i.e., not limited to accidents where fault was
assigned to the waivered driver) were reported in this group.\24\
---------------------------------------------------------------------------
\24\ FHWA, Office of Motor Carriers. The Seventh Monitoring
Report on the Drivers of Commercial Motor Vehicles Who Receive
Vision Waivers, Washington, DC: U.S. Department of Transportation,
February 29, 1996, p. 1.
---------------------------------------------------------------------------
To effectively monitor the waiver program, FHWA established a
framework to notify FHWA if the waiver group proved to be unsafe. The
framework involved the use of a decision strategy that identified when
the waiver group's accident rate was sufficiently larger than the
national accident rate that there could be a threat to public safety.
More specifically, the 90 percent confidence interval associated with
the waiver group's accident rate was compared to the national rate. The
national rate was treated as a constant because it was given frequently
as an official rate without a confidence interval. The decision was
made to notify FHWA when the lower 90 percent confidence bound
associated with the accident rate of the waiver group was larger than
the national rate. That strategy was seen as conservative in that it
limited the waiver group's accident exposure.\25\
---------------------------------------------------------------------------
\25\ Id. at 2.
---------------------------------------------------------------------------
Based on analysis of the data collected from August 1992 to
November 1995, Table 1 provides a comparison of the accident rate in
the waiver group to the national rate. Relative to the 90 percent
confidence interval calculated for the waiver group's rate, the data
show the lower bound was not larger than the national rate. In fact,
the waiver group's overall accident rate was lower than the national
rate. Thus, FHWA determined that the waiver group did not represent a
threat to public safety.\26\
---------------------------------------------------------------------------
\26\ Id. at 2-3.
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Table 1 also presents comparisons between the waiver group and
national accident rates relative to accident severity. FHWA routinely
investigated serious accidents and violations involving members of the
waiver group. ``In the case of these accidents, the drivers were not
found to be at fault nor were any of the accidents related to a vision
deficiency.'' \27\ In none of the severity categories did the lower 90
percent confidence bounds of the relevant waiver group rates exceed the
respective national rates.
---------------------------------------------------------------------------
\27\ Id. at 3, note.
Table 1--Comparison of Accident Rates Experienced by Commercial Motor Vehicle Operators With Vision Waivers to
National Accident Rates in Relation to Total Accidents and Accident Severity
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Waiver group National
accident rate accident rate \2\
\1\ (number of
(number of accidents)
accidents) 90% Confidence interval (lower
and upper)
----------------------------------------------------------------------------------------------------------------
Total Accidents \3\.......................... 1.706 (510) 1.582 1.830 2.605 (444,000)
----------------------------------------------------------------------------------------------------------------
Accident Severity
----------------------------------------------------------------------------------------------------------------
Property Damage Only......................... 1.284 (384) 1.177 1.392 2.048 (349,000)
Injury Involved.............................. .408 (122) .347 .469 .534 (95,000)
Fatality Involved............................ .013 (4) .002 .024 .026 (4,615)
----------------------------------------------------------------------------------------------------------------
\1\ Rate is calculated based on 299 million vehicle miles traveled by the waiver group between July 1992 and
November 1995.
\2\ National accident estimates are for large trucks given by the GES 1994, National Highway Traffic Safety
Administration. Rate calculated based on 170,415 million vehicle miles traveled in 1994.
\3\ Total accidents experienced by the waiver group between July 1992 and November 1995.
Source: FHWA. Office of Motor Carriers. The Seventh Monitoring Report on the Drivers of Commercial Motor
Vehicles Who Receive Vision Waivers. Washington, DC: U.S. Department of Transportation; February 29, 1996,
Table 1.
A September 1999 FHWA Tech Brief titled ``Qualifications of Drivers
-- Vision and Diabetes'' \28\ summarizes the May 1997 report discussed
above. The Tech Brief notes that the report's risk analysis was
performed to support the grandfathering of drivers to permanent waiver
status after the vision waiver study program was closed; therefore, the
generalizability of the results was limited.
---------------------------------------------------------------------------
\28\ FHWA, Office of Motor Carrier Research and Standards,
Qualifications of Drivers--Vison and Diabetes, Tech Brief (FHWA-
MCRT-99-017), Washington, DC: U.S. Department of Transportation,
September 1999, available at https://rosap.ntl.bts.gov/view/dot/14291 (last accessed July 15, 2019).
---------------------------------------------------------------------------
In October 1998, FHWA received a report titled ``Visual
Requirements and Commercial Drivers'' prepared by a panel of medical
experts associated with Beth Israel Deaconess Medical Center and
Harvard Medical School.\29\ The report stated that the data obtained
from the vision waiver study program was ``extremely compelling. The
waiver group accident rate was consistently below the national accident
rate (cumulative comparison) and for drivers still in the program in
August 1995, the waiver group accident rate consistently decreased to
well below the national accident rate, exceeding the latter only during
the first 6 months of the program.'' \30\ The report continued that the
program resulted in a useful database that clearly supported a new
ongoing waiver program, and provided sufficient rationale for a follow-
up study that might modify the current vision requirements for
commercial drivers.
---------------------------------------------------------------------------
\29\ Berson F, Kuperwaser M, Aiello L, and Rosenberg J., Visual
Requirements and Commercial Drivers, Final Report, Boston, MA: Beth
Israel Deaconess Medical Center and Harvard Medical School, October
16, 1998, available at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/visionfinalreport10-16-98.pdf (last
accessed July 15, 2019).
\30\ Id. at 12 (original bolding deleted).
---------------------------------------------------------------------------
In October 2006, FMCSA received a report titled ``Medical Exemption
Program Study'' prepared by Cambridge Systematics, Inc.\31\ This
project provided process and outcome information regarding the vision
exemption program. The main conclusion of this project was that the
vision exemption program did not appear to impact safety negatively on
the nation's highways.\32\ Additionally, the project found the overall
vision exemption program to be effective.
---------------------------------------------------------------------------
\31\ Cambridge Systematics, Inc., Medical Exemption Program
Study: Preliminary Report of Findings, Final Report, Chevy Chase,
MD: Cambridge Systematics, Inc., October 13, 2006, available at
https://rosap.ntl.bts.gov/view/dot/16459 (last accessed July 16,
2019).
\32\ Id. at 7-1.
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Drivers in the vision exemption program had 20 percent fewer
reported
[[Page 2353]]
collisions than a control set of drivers. Participation in the
exemption program was shown to have a 94.4 percent confidence interval
of reducing the number of reported collisions attributable to the
driver.\33\ While most of the analysis compared the exemption program
drivers to the entire set of control drivers, one analysis compared a
subset of the control drivers who had no reported collisions during the
3 years ending on the ``control date'' of December 31, 2003, to the
exemption program drivers. The analysis showed ``little difference in
reported collision rate between the program and control sets.'' \34\
Thus, when controlling for previous collision rates over a 3-year
period, the collision rates for visually impaired ``safe'' drivers were
not found to be higher than the non-impaired ``safe'' drivers.\35\
---------------------------------------------------------------------------
\33\ Id. at 7-1.
\34\ Id. at 6-14.
\35\ Id. 7-2.
---------------------------------------------------------------------------
Cambridge Systematics summarized the findings from the various
studies in the scientific literature into a set of key points, and
stated that ``[a]lmost all of the studies examined in the area of
vision deficiencies illustrate similar challenges in the design,
implementation, and patterns of their findings.'' \36\ The challenges
were summarized as confounding factors, outcome definitions, and
impairment definitions. Confounding effect is observed when a factor
that is not controlled statistically or by the study design obscures
the effect of treatment. Examples of such factors impacting the field
of vision and driving were age, driving exposure, and compensating
behavior. With respect to compensating behavior, Cambridge Systematics
stated that ``[i]t is well recognized that visually impaired drivers
develop effective compensatory strategies to accommodate their
impairments. Therefore, relying on medical test scores and ignoring
actual driving performance can easily obscure the treatment effect
under study.'' \37\ Traffic safety outcomes may be defined in terms of
crashes, violations, crash or violation rates per miles driven,
performance in on-road tests and driving simulations, and self-reported
incidence involvement rates and other habits. However, because ``the
relationship between these outcomes is not clearly established, making
comparisons across different studies becomes tenuous.'' \38\
Inconsistencies in impairment definitions and measuring can result from
incorrect reports of the presence or absence of an eye condition and
the different thresholds used to designate subjects as impaired or
unimpaired. With respect to monocular drivers being granted commercial
licenses, Cambridge Systematics pointed out ``[t]he term `monocular' is
typically used quite broadly in the research literature on this topic
and denotes drivers who have a total absence of function in one eye and
additionally those who have visual function in one eye below the
minimum level for commercial licensing.'' \39\
---------------------------------------------------------------------------
\36\ Id. at 4-22.
\37\ Id. at 4-22.
\38\ Id. at 4-22.
\39\ Id. at 4-12.
---------------------------------------------------------------------------
In June 2008, FMCSA received the final evidence report titled
``Vision and Commercial Motor Vehicle Driver Safety'' prepared by the
Manila Consulting Group, Inc. and the ECRI Institute.\40\ The evidence
report addressed several key questions developed by FMCSA pertaining to
vision and CMV driver safety by summarizing the best evidence that was
available in the literature. The key question relevant to this proposal
was an inquiry to determine whether monocular vision is associated with
an increased crash risk. Due to methodological limitations and
inconsistency among the findings of different studies, the authors
concluded that the evidence was insufficient to determine whether
individuals with monocular vision were at increased risk of a
crash.\41\
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\40\ Tregear S, Reed M, Tiller M, and Reston J., Vision and
Commercial Motor Vehicle Driver Safety, Volume 1: Evidence Report,
McLean, VA: Manila Consulting Group, Inc. and Plymouth Meeting, PA:
The ECRI Institute, June 6, 2008, available at https://rosap.ntl.bts.gov/view/dot/16502 (last accessed July 16, 2019).
\41\ Id. at 2-3.
---------------------------------------------------------------------------
The authors identified three studies that provided crash data for
drivers with monocular vision in general driver populations. ``Because
of a number of methodological flaws, [the authors'] confidence in the
findings of all three of the studies [was] low. While two studies found
no evidence to support the contention that individuals with monocular
vision are at an increased risk for a motor vehicle crash, the third
study did find an association between monocular vision and increased
crash risk. Given the low quality of the included studies and the fact
that the findings of these studies were inconsistent, [the authors did]
not draw an evidence-based conclusion.'' \42\ The authors stated,
however, that ``the possibility that individuals with monocular vision
have an increased crash risk cannot be ruled out.'' \43\
---------------------------------------------------------------------------
\42\ Id. at 3.
\43\ Id. at 3.
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In March 2008, a medical expert panel made recommendations, titled
``Vision and Commercial Motor Vehicle Driver Safety,'' associated with
the evidence report for the MRB to consider.\44\ With respect to
monocular vision, the panel agreed that the current evidence was
insufficient to justify a change in the vision standard. The panel
noted that the evidence report did not rule out the possibility of
increased crash risk for monocular drivers. Nonetheless, the panel
stated ``that the Exemption Program should be continued and a protocol
established to obtain the data necessary for a future recommendation.''
\45\
---------------------------------------------------------------------------
\44\ Berson F, Owsley C, and Peli E., Vision and Commercial
Motor Vehicle Driver Safety, Expert Panel Recommendations, March 14,
2008, available at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/MEP-Recommendations-Vision-v2-prot.pdf (last accessed
July 16, 2019). The expert panel reviewed a draft of the ``Vision
and Commercial Motor Vehicle Driver Safety'' evidence report. While
the expert panel agreed with the findings of the draft evidence
report, the panel disagreed with the reasoning for including and
excluding several studies. The research team considered the panel's
criticism and agreed to amend the report before it was finalized.
The revised executive summary for the 2008 evidence report is
Appendix A of the expert panel recommendations report and is
included in the final June 2008 evidence report discussed above.
\45\ Id. at 4.
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During an April 2008 meeting, the MRB made recommendations to the
Agency pertaining to driver vision requirements based on presentations
and discussions of the 2008 draft evidence report, the related medical
expert panel recommendations, and public comment. With respect to
monocular vision, the MRB recommended that ``[t]he current standard
which precludes individuals with monocular vision from driving a CMV
for the purposes of interstate commerce should not be changed at this
time.'' \46\
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\46\ FMCSA Medical Review Board, Meeting Summary, April 7, 2008,
p. 15, available at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/April_7_MRB_Meeting_Minutes_71708_Final_Updated10108.pdf
(last accessed July 16, 2019).
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In September 2015, the MRB provided recommendations to the Agency
in response to MRB Task 15-2, which requested that the MRB recommend
criteria and identify factors the Agency should consider in deciding
about a future rulemaking regarding vision criteria. The MRB provided
the following recommendations: \47\
---------------------------------------------------------------------------
\47\ FMCSA Medical Review Board, MRB Task 15-02 Report,
September 1, 2015, available at https://www.fmcsa.dot.gov/final-mrb-task-15-02-report (last accessed July 16, 2019).
I. If FMCSA considers removing the current Visual Exemption
program, the MRB recommends the following changes to the vision
standard regulations:
[[Page 2354]]
A. Provide a form/questionnaire to the eye specialist
(ophthalmologist or optometrist) that includes all information
required by the current Visual Exemption program. Form should be
given to the Certified Medical Examiner (CME).
B. Length of certification with vision exemption: MRB recommends
1 year but FMCSA should seek comment from eye specialist
(ophthalmologist or optometrist) associations on recommended
frequency of examination.
II. FMCSA should seek comment from the eye specialist
(ophthalmologist or optometrist) associations regarding:
A. Whether there is additional information that would be useful
to collect.
B. What is the minimum amount of time they would feel
comfortable allowing someone to drive who has sudden change from
binocular vision? (Current Visual Exemption Program requires a safe
driving record with such an eye condition for 3 years.)
C. Co-condition/disease process.
D. Recommendations on field of vision criteria (e.g., not
supposed to be 70[deg] as stated in the current vision standard).
The proposed alternative vision standard incorporates the MRB's
2015 recommendations.
In November 2016, FMCSA published an Analysis Brief \48\ that
reviewed the safety performance of drivers in the vision exemption
program. The study's purpose was to compare the crash rates of CMV
drivers enrolled in the vision exemption program with drivers not
enrolled in the program. The Agency assessed drivers in terms of their
crash rates and inspection violation rates. FMCSA assessed the safety
performance of drivers in the program for 5 years from 2011 through
2015.
---------------------------------------------------------------------------
\48\ FMCSA, Safety Performance of Drivers with Medical
Exemptions: How safe are drivers in a medical exemption program
compared to those who are not?, Analysis Brief (FMCSA RRA-16-019b),
Washington, DC: U.S. Department of Transportation, November 2016,
available at https://rosap.ntl.bts.gov/view/dot/31521 (last accessed
July 16, 2019).
---------------------------------------------------------------------------
Table 2 compares the crash rate for drivers in the vision exemption
program to the national crash rate. The data show that the crash rate
for drivers in the vision exemption program is lower than the national
crash rate.\49\
---------------------------------------------------------------------------
\49\ Id. at 5, Table 5.
Table 2--Crash Rates for Vision Exemption Program Drivers Compared to National Crash Rates, Crashes per Driver
per Year, 2011-2015
----------------------------------------------------------------------------------------------------------------
Vision exemption National crash
Number of Number of crash rate National average National average rate (crashes
exemption drivers exemption driver (crashes per annual number of annual number of per driver per
crashes driver per year) drivers crashes year)
----------------------------------------------------------------------------------------------------------------
1,117 144 0.02578 4,599,623 143,289 0.03115
----------------------------------------------------------------------------------------------------------------
The Agency also compared drivers enrolled in the exemption program
to a control group that was established using the Driver Information
Resource, which captures drivers' driving histories. Drivers were
chosen at random and added to the control group in proportion to the
age and carrier size of the corresponding exemption program group until
the control group contained three times as many drivers as the
respective exemption program group. To determine whether any
differences in crash rates were statistically significant, FMCSA
conducted statistical testing at the 95 percent confidence level. Table
3 shows the results.\50\
---------------------------------------------------------------------------
\50\ See id. at 5-6, Tables 6-8.
Table 3--Comparison of Vision Exemption Program Group and Control Group Crash and Violation Rates
----------------------------------------------------------------------------------------------------------------
Number of Exemption
exemption program group Control group Statistically
Crash or violation rates program group crash or crash or significant difference
drivers violation rate violation rate
----------------------------------------------------------------------------------------------------------------
Crash Rates........................... 680 0.03853 0.02819 Yes.
Violation Rates....................... 680 1.9721 2.4911 Yes.
Out-of-Service Violation Rates........ 680 0.22353 0.29870 Yes.
----------------------------------------------------------------------------------------------------------------
The crash rate for the vision exemption program group was
statistically different from its control group, being slightly higher
at 0.03853 crashes per driver per year than the control group rate of
0.02819. ``This equates to about one more crash per year for every 100
drivers in the vision exemption program than for similar drivers not in
the vision exemption program.'' \51\ The driver violation rate and
driver out-of-service violation rate were lower than the control group,
with the difference being statistically significant. FMCSA concluded in
2016 that further studies should be done using larger sample sizes to
confirm or challenge the results from this study.
---------------------------------------------------------------------------
\51\ Id. at 5.
---------------------------------------------------------------------------
There are several limitations regarding the Analysis Brief's
findings. For example, the crash information did not consider whether
the CMV driver was at fault in any given crash. It is not possible to
know whether visual function caused or contributed to the crash. It
also is not possible to determine whether including only those drivers
who were in the vision exemption program for the full 5-year period
impacted the results, if at all. The control group was selected based
on age of the driver and the size of the employing motor carrier,
rather than individual visual function criteria.
The Agency finds that the increased crash rate for the vision
exemption program group as compared to its control group demonstrated
in the Analysis Brief is not cause for concern. The findings of the
Analysis Brief represent a limited period and are subject to the
additional limitations discussed previously. FMCSA monitors the
performance of individual drivers in the vision exemption program
continuously. FMCSA does not have evidence to suggest drivers in the
exemption program are less safe than the general population of CMV
drivers.
Every year the Agency reports to Congress regarding the vision
exemptions granted and any impact on safety. The Agency has
consistently informed Congress that FMCSA has
[[Page 2355]]
observed no adverse impacts on CMV safety due to the vision exemption
program.\52\
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\52\ FMCSA, Waivers, Exemptions, and Pilot Programs Annual
Reports to Congress Fiscal Years 1999-2013, February 2016, p. 25;
Fiscal Year 2014, April 2017, p. 9; Fiscal Year 2015, May 2017, p.
15; Fiscal Year 2016, October 2017, p. 11; and Fiscal Year 2017,
September 2018, p. 10. These reports are available at https://www.fmcsa.dot.gov/mission/policy/reports-congress (last accessed
July 15, 2019).
---------------------------------------------------------------------------
During its June 2018 meeting, the MRB discussed the MRB Task 15-2
report and was presented draft findings of a study performed by the
University of Alabama at Birmingham examining the FMCSA vision standard
for CMV drivers. The MRB made no changes to its previous
recommendations in MRB Task 15-2.
During its July 2019 meeting, FMCSA updated the MRB on the
University of Alabama study. The MRB discussed the draft findings of
the study and the vision exemption program. The MRB did not change its
MRB Task 15-2 recommendations. The MRB continued the status quo by
recommending that FMCSA maintain the current vision standard and
continue the vision exemption program. In addition, the MRB recommended
that FMCSA investigate shortening the 3-year intrastate driving
experience criterion. The MRB also voted to review the vision exemption
program at a future meeting when more information is available.\53\
---------------------------------------------------------------------------
\53\ FMCSA Medical Review Board, Meeting Minutes, July 15-16,
2019, p. 3, available at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2020-08/MRB-meeting-minutes-july-2019-508c.pdf
(last accessed September 2, 2020).
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In November 2019, FMCSA published the University of Alabama at
Birmingham report titled ``Examining the FMCSA Vision Standard for
Commercial Motor Vehicle Drivers'' (Ball et al., 2019).\54\ One of the
study's overall objectives was to determine the safety efficacy of
FMCSA's current vision standards. The research team procured a dataset
from a third-party provider that included all vision-related data
obtained during an FMCSA physical qualification examination on nearly
190,000 CMV drivers. The research team merged the data with crash
records obtained from the Motor Carrier Management Information System
(MCMIS). From the examination dataset, the results of vision function
testing, including visual acuity, horizontal field of vision,\55\ color
recognition, and monocular vision, were compared for drivers who met
the vision standard versus drivers who did not meet the vision
standard. Evidence from the literature review, consultation with
experts, and analysis of CMV driver vision and crash data supported the
measurement of visual acuity and horizontal field of vision using the
current cut-points.\56\
---------------------------------------------------------------------------
\54\ Ball K, Heaton K, McGwin G, Owsley C, and Stavrinos D.,
Examining the FMCSA Vision Standard for Commercial Motor Vehicle
Drivers (Report No. FMCSA-RRR-19-011).), Washington, DC: FMCSA,
2019, available at https://rosap.ntl.bts.gov/view/dot/42735 (last
accessed December 09, 2019).
\55\ The study uses the term ``field of view,'' which is
synonymous with the FMCSR term ``field of vision.'' To avoid
confusion, the term is replaced in this discussion of the study with
``field of vision.''
\56\ FMCSA notes that the study found no evidence that CMV
drivers with monocular vision were at increased risk of collision.
The Agency is not relying on that finding to support this rulemaking
due to limitations set forth in the study relating to the study's
design and dataset.
---------------------------------------------------------------------------
As relevant to this proposal, Ball, et al. (2019) found that the
literature regarding how monocularity impacts driving performance is
mixed.\57\ Some studies suggest that monocularity is not related to CMV
performance decrements in specific skills such as visual search, lane
placement, clearance judgment, gap judgment, hazard detection, and
information recognition.\58\ The literature also is mixed with respect
to how monocularity impacts motor vehicle collision rates, with several
studies finding elevated collision rates or more severe collisions for
monocular drivers,59 60 61 and another study showing that
commercial monocular drivers did not have a higher collision rate than
drivers with normal vision in both eyes. In that study (discussed
above), FHWA evaluated commercial vehicle drivers who received waivers
of the CMV driver vision requirements.\62\ Results indicated that the
waiver group's crash rates were not higher than the national reference
group, nor were their crashes more severe. Ball, et al. (2019) noted,
however, that ``one limitation of this analysis is that it is unknown
whether the reference group was similar to the waiver group on other
factors (e.g., age, other visual function measures) that may be related
to crash risk.'' \63\
---------------------------------------------------------------------------
\57\ Id. at 5.
\58\ McKnight AJ, Shinar D, and Hilburn B., ``The visual and
driving performance of monocular and binocular heavy-duty truck
drivers,'' Accident Analysis & Prevention 23(4), pp. 225-237 (1991).
This study was performed under contract to FHWA.
\59\ Dionne G, Desjardins D, Laberge-Nadeau C, and Maag U.,
``Medical conditions, risk exposure, and truck drivers' accidents:
an analysis with count data regression models,'' Accident Analysis &
Prevention 27(3), pp. 295-305 (1995).
\60\ Laberge-Nadeau C, Dionne G, Maag U, Desjardins D, Vanasse
C, and [Eacute]ko[eacute] J-M., ``Medical conditions and the
severity of commercial motor vehicle drivers' road accidents,''
Accident Analysis & Prevention 28(1), pp. 43-51 (1996).
\61\ Maag U, Vanasse C, Dionne G, and Laberge-Nadeau C., ``Taxi
drivers' accidents: how binocular vision problems are related to
their rate and severity in terms of the number of victims,''
Accident Analysis & Prevention 29(2), pp. 217-224 (1997).
\62\ FHWA, Office of Motor Carriers, The Seventh Monitoring
Report on the Drivers of Commercial Motor Vehicles Who Receive
Vision Waivers, Washington, DC: U.S. Department of Transportation,
February 29, 1996.
\63\ Ball K, Heaton K, McGwin G, Owsley C, and Stavrinos D.,
Examining the FMCSA Vision Standard for Commercial Motor Vehicle
Drivers (Report No. FMCSA-RRR-19-011), Washington, DC: FMCSA 2019,
p. 5, available at https://rosap.ntl.bts.gov/view/dot/42735 (last
accessed December 09, 2019).
---------------------------------------------------------------------------
The report continues that findings across studies in the literature
are inconsistent with respect to the safety of monocular drivers, which
is not surprising given that the definition of monocularity across the
studies is not consistent. The definition of ``monocular'' is variable
and can range from the total absence of vision in one eye, to vision in
one eye that involves a lack of binocular visual function, such as
depth perception, or is below some standard.
FMCSA Conclusions
The foregoing reports and analyses do not call into question the
existence of the vision exemption program. As early as 1991, most of
the panelists convened by Ketron agreed there was sufficient evidence
relating to lowered acuity to change the vision standard to allow
monocular drivers or drivers with vision substantially worse in one
eye. The 1997 Conwal report showed the vision waiver study program
group's overall accident rate was lower than the national rate and FHWA
determined the waiver group did not represent an increased risk to
public safety. In 1998, a panel of medical experts stated the data from
the vision waiver study program was ``extremely compelling'' and
clearly supported a new waiver program.
In 2006, Cambridge Systematics' review of the vision exemption
program concluded the program did not appear to impact safety
negatively. The 2008 evidence report found the three studies that
provided crash data for drivers with monocular vision in general driver
populations were insufficient to determine whether individuals with
monocular vision were at increased risk of a crash. Because the report
did not provide any conclusions, neither the medical expert panel nor
the MRB recommended changing the vision standard. The 2008 medical
expert panel recommended that the exemption program continue. The MRB
has never recommended that the exemption program end and has continued
its 2015
[[Page 2356]]
recommendations for FMCSA to consider if it changes the vision
standard.
The reports and analyses discussed above do not establish strong
relationships between specific measures of vision and correlates of
driver safety. They do, however, point out the numerous difficulties
associated with obtaining empirical data to determine minimum vision
criteria and the methodological flaws associated with many studies
evaluating vision criteria and crash risk. Most of the available data
come from drivers in general and not CMV drivers specifically. Usually,
crash information does not indicate whether the driver was at fault in
any given crash. In addition, it is rarely possible to determine
whether visual function was the cause of a crash.
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.
After full consideration of the foregoing reports and analyses,
FMCSA finds the experience with the vision waiver study and exemption
programs is most relevant in establishing an alternative vision
standard. These programs have allowed FMCSA to evaluate the vision
criteria used in the programs since 1992 in the context of actual CMV
driving experience. Considering the long period over which the programs
have operated, FMCSA has sufficient information to reach generalized
conclusions.
FHWA and FMCSA monitored the safety performance of drivers in the
vision waiver study and the current exemption programs continuously.
Based on the experience with the vision waiver study and exemption
programs, FMCSA has determined that the safety performance of
individuals in these programs is at least as good as that of the
general population of CMV drivers. Indeed, the Agency has continued to
grant vision exemptions because experience 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.
The Agency's ability to draw on its experience from the vision
waiver study and exemption programs to develop modifications of the
existing standard is consistent with one of the purposes of the
authority provided by the enactment of TEA-21 that established a new
process for granting regulatory exemptions in 49 U.S.C. 31315. TEA-21
gave the Agency ``broader discretion to grant waivers and exemptions
from motor carrier and driver safety regulations which are necessary to
develop performance based regulations and evaluate the effectiveness of
existing regulations.'' H. Report 105-550 at 489 (1998).
Accordingly, the Agency proposes to adopt most of the existing
vision exemption program criteria and modify other of the criteria as a
vision standard to be applied in lieu of the vision exemption program.
Therefore, the alternative vision standard would require individuals,
to be physically qualified, to 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;
the ability to recognize the colors of traffic signals and devices
showing standard red, green, and amber; stability of the vision
deficiency; and sufficient time to adapt to and compensate for the
change in vision. Instead of requiring 3 years of intrastate driving
experience with the vision deficiency, with limited exceptions,
individuals physically qualified under the proposed alternative vision
standard for the first time would complete a road test before operating
in interstate commerce. FMCSA expects that individuals who satisfy
these criteria would not create an increased risk of injury to
themselves or others due to their vision.
VII. Rationale for Proposed Qualification Standard
The Agency proposes to adopt most of the existing vision exemption
program criteria and to modify other program criteria as an alternative
vision standard. The proposed standard takes a performance-based
approach. The standard emphasizes that the individual has developed the
skills to adapt to and compensate for the vision loss once it has been
deemed stable by a medical professional, and that the individual has
demonstrated the skills to operate a CMV safely. The ME would ensure
the individual is physically qualified to operate a CMV in accordance
with the physical qualification standards. Motor carriers would
maintain the responsibility for reviewing the individual's safety
performance and, with limited exceptions, would conduct a road test for
individuals.
A. Individuals Adapt to and Compensate for Vision Loss
As stated above, it is well recognized that individuals with vision
loss in one eye can and do develop compensatory viewing behavior to
mitigate the vision loss. Therefore, if an individual meets the
proposed vision standard, the Agency expects there will be no adverse
impact on safety due to the individual's vision. That is, once an
individual's vision is stable and the individual has adapted to and
compensated for the change in vision, the loss in vision is not likely
to play a significant role in whether the individual can drive a CMV
safely.
Instead of requiring 3 years of intrastate driving experience with
the vision deficiency as in the current exemption program, FMCSA
proposes that individuals physically qualified under the proposed
alternative vision standard for the first time satisfactorily 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 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.
The requirement for 3 years of intrastate driving experience with
the vision deficiency has been equated to sufficient time for the
driver to adapt to and compensate for the change in vision. FHWA stated
the 3-year safe driving history with the vision deficiency requirement
was based on studies ``indicating that past experience can be used to
predict future performance, especially when combined with other
predictive factors such as geographic location, mileage driven, and
conviction history'' (59 FR 50887, 50888, October 6, 1994). FHWA
continued that it relied on opinions from the medical community that
individuals with a vision deficiency are often able to compensate for
their impairment over time. ``Because of the discrepancy as to how much
time is necessary to allow an individual to compensate for an
impairment (which generally ranged from several months to a full year),
[FHWA's] choice of three years provided added assurance that drivers
would have had sufficient time to develop compensatory behavior. It was
also the longest period for which driver histories were uniformly
available from State motor vehicle departments'' (59 FR 50888-89).
Although it was considered appropriate for FHWA to proceed
conservatively and to ensure adequate time for individuals to adapt to
and compensate for vision changes when beginning the waiver study
program, it
[[Page 2357]]
appears that the primary factor in selecting the 3 years of intrastate
driving experience criterion was that it coincided with the typical
period of motor vehicle driving histories. Three years of experience
driving with the vision deficiency exceeded by several months to a full
year, according to opinions of the medical community, the period
necessary to compensate for the vision loss. Eliminating the driving
experience criterion would not allow potentially hazardous drivers to
participate in interstate commerce because medical professionals would
ensure drivers have had the time to adapt to and compensate for the
vision change. The driving experience criterion has the limitation that
many drivers are not able to obtain intrastate driving experience
because not all States issue vision waivers. For these reasons, FMCSA
is not proposing to continue the exemption program's requirement for 3
years of intrastate driving experience with the vision deficiency in
the alternative vision standard. Nonetheless, it is reasonable to
ensure an individual possesses the skills needed to operate a CMV
safely with the vision deficiency.
As an alternative to the 3 years of intrastate driving experience
criterion, FMCSA proposes, with limited exceptions, that individuals
physically qualified under the alternative vision standard for the
first time satisfactorily complete a road test before operating in
interstate commerce. The road test would be conducted in accordance
with the road test already required by Sec. 391.31. When FHWA 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 (April 22, 1970)).
FMCSA finds that a road test would be 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.
The proposed alternative vision standard also would not continue
the 3-year safe driving history criterion. Selecting only drivers with
a history of safe driving to participate in the vision waiver study
program allowed FHWA to focus on the impact of vision on driving. After
nearly 30 years with the vision waiver study and exemption programs,
experience 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.
Accordingly, the 3-year safe driving history criterion has served its
purpose and is no longer necessary.
FMCSA declines to propose specific periods for which an
individual's vision deficiency must be stable and for what constitutes
sufficient time to adapt to and compensate for the change in vision.
The causes of vision loss are many and varied. Vision loss may be
present at birth, the result of trauma, due to medical treatment
intervention, or the result of a progressive eye condition or disease.
The cause of the vision loss is a primary factor in how long it takes
for an individual to adapt to and compensate for the change in vision.
In general, those who experience sudden loss of vision in one eye
require more time to adapt to and compensate for the change than those
who lose their vision gradually. For example, Coday, et al. (2002)
found the time for patients to adapt to sudden vision loss was 8.8
months and to adapt to gradual vision loss was 3.6 months.\64\
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\64\ Coday MP, Warner MA, Jahrlin KV, and Rubin PA, ``Acquired
Monocular Vision: Functional Consequences from the Patient's
Perspective,'' Ophthalmic Plastic and Reconstructive Surgery, 18(1),
pp. 56-63 (2002), available at https://www.ncbi.nlm.nih.gov/pubmed/11910326 (last accessed March 24, 2020).
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Therefore, the Agency proposes that medical decisions regarding
whether an individual's vision deficiency is stable and whether the
individual has adapted to and compensated for the change in vision be
made by medical professionals. These medical decisions should be based
on an individualized assessment by a medical professional rather than a
regulation.\65\
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\65\ On December 18, 2013, FMCSA proposed changes to the
eligibility requirements for the exemption program. As relevant
here, FMCSA proposed to reduce the length of driving experience to 1
year of intrastate driving experience with the stable visual
deficiency or to remove the driving experience criterion altogether
(78 FR 76590, 76592). The American Optometric Association supported
removing the requirement for a specific amount of driving
experience, in part, because an examination by an ophthalmologist or
optometrist within the prior 3 months from the date of application
would help to assess whether the driver had experienced recent
vision deterioration. This comment is available in docket number
FMCSA-2013-0097 at https://www.regulations.gov/document?D=FMCSA-2013-0097-0004 (last accessed March 13, 2020).
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B. MEs Would Make the Qualification Determination
The proposed alternative vision standard would place the case-by-
case physical qualification determination with the ME who examines the
individual, which is consistent with FMCSA's rule to adopt an
alternative physical qualification standard for individuals with
insulin-treated diabetes mellitus (see 83 FR 47486, September 19,
2018). Thus, licensed healthcare professionals listed on the Agency's
National Registry of Certified Medical Examiners (National Registry)
would consider the information in the Vision Evaluation Report, Form
MCSA-5871, and determine whether an individual meets the proposed
vision standard. This approach of MEs making the physical qualification
determination, instead of FMCSA, is consistent with Congress's
directive in 49 U.S.C. 31149(d) to have trained and certified MEs
assess the individual's health status. In addition, the proposed
process would create a clear and consistent framework to assist MEs
with making a physical qualification determination that is equally as
effective as a program based entirely on granting exemptions under 49
U.S.C. 31315(b).
C. Review of an Individual's Safety Performance Would Continue
FMCSA is not proposing to change the current regulations that
require motor carriers to review an individual's safety performance.
FMCSA has regulatory requirements in place to ensure that motor
carriers review the safety performance of all their drivers. For
example, motor carriers are required to 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)). Also, motor carriers are required
to review the motor vehicle records for all drivers annually (49 CFR
391.25). In addition, the road test would demonstrate whether
individuals are able to operate a CMV safely with the vision
deficiency.
As previously stated, the 3-year safe driving history criterion has
served its purpose and is no longer necessary. Accordingly, the safety
performance of individuals who can satisfy the proposed alternative
vision standard should be evaluated in the same manner as other
drivers.
VIII. Discussion of Proposed Rule
FMCSA elects to respond to the MRB's request to investigate
shortening the 3-year intrastate driving experience criterion and to
provide more information about the vision exemption program by
publishing this NPRM and proposing a rule that includes the MRB's 2015
recommendations. This approach provides the MRB with background on the
exemption program, summaries of prior reports and analyses, a specific
proposal and its rationale to consider, and public comment on the
[[Page 2358]]
proposal.\66\ As noted above, the Agency will follow a rulemaking
process like the one used when FMCSA adopted the alternative physical
qualification standard for insulin-treated diabetes mellitus. After the
public comment period closes, FMCSA will ask the MRB to review all
comments to the NPRM from medical professionals and associations. If
after that review the MRB makes material changes to its prior
recommendations in MRB Task 15-2, FMCSA will publish a Federal Register
notice announcing the availability of the new MRB recommendations and
request public comment specific to those recommendations.
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\66\ FMCSA notes that proceeding with an NPRM is also responsive
to stakeholder comment. For example, in the rulemaking to change the
physical qualification standard relating to insulin-treated diabetes
mellitus, the American Trucking Associations, Inc. (``ATA'')
commented that it was pleased that FMCSA was using the rulemaking
process to adjust that standard. Additionally, ATA ``implore[d]
FMCSA to also conduct rulemaking on its other `absolute' medical
standards for which it is currently issuing exemptions en masse
including the vision and hearing standards.'' ATA continued that
``[e]xemptions from these medical standards only create confusion in
the industry as to what constitutes a medically safe driver and what
does not. It also creates an unnecessary, but easily solvable,
predicament for motor carriers.'' This comment is available in
docket number FMCSA-2005-23151 at https://www.regulations.gov/document?D=FMCSA-2005-23151-0960 (last access March 13, 2020).
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FMCSA proposes to establish an alternative physical qualification
standard for individuals who cannot satisfy either the distant visual
acuity or field of vision standard, or both, in Sec. 391.41(b)(10) in
one eye. If adopted, the alternative vision standard would replace the
current vision exemption program as a basis for determining the
physical qualification of these individuals to operate a CMV. It also
would eliminate the need for the grandfather provisions under Sec.
391.64(b). The proposed alternative vision standard would enhance
employment opportunities and reduce the paperwork burden for drivers,
while remaining consistent with FMCSA's safety mission.
Specifically, the Agency proposes to adopt most of the existing
vision exemption program criteria and modify other of the criteria as a
vision standard to be applied in lieu of the vision exemption program.
The alternative vision standard would require individuals, to be
physically qualified, to 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; the
ability to recognize the colors of traffic signals and devices showing
standard red, green, and amber; stability of the vision deficiency; and
sufficient time to adapt to and compensate for the change in vision.
With limited exceptions, FMCSA also would require individuals
physically qualified under the proposed alternative vision standard for
the first time to complete a road test administered by the motor
carrier satisfactorily before operating in interstate commerce.
A. Proposed Physical Qualification Process
FMCSA proposes a two-step process for physical qualification. The
process would be analogous to what the Agency adopted in Sec. 391.46
for individuals with insulin-treated diabetes mellitus (see 83 FR
47486, September 19, 2018). 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, which incorporates the recommendations of the MRB. Next, at a
physical qualification examination, an ME would consider the
information provided on the vision report and exercise independent
medical judgment to determine whether the individual meets the proposed
vision standard, as well as FMCSA's other physical qualification
standards. If the ME determines that the individual meets the physical
qualification standards to operate a CMV safely, the ME could issue an
MEC, Form MCSA-5876, for a maximum of 12 months.
FMCSA is not proposing changes to the current vision standard found
in Sec. 391.41(b)(10). The current standard would be redesignated as
paragraph (b)(10)(i). An alternative vision standard would be added in
paragraph (b)(10)(ii) to allow an individual who cannot satisfy either
the distant visual acuity or field of vision standard, or both, in one
eye to be physically qualified if the individual satisfies the
requirements of proposed Sec. 391.44.
Proposed Sec. 391.44 would set forth the provisions of the
alternative vision standard. It would provide that an individual who
cannot satisfy either the current distant visual acuity or field of
vision standard, or both, in one eye is physically qualified to operate
a CMV in interstate commerce if the individual (1) meets FMCSA's other
physical qualification standards in Sec. 391.41 (or has an exemption
or skill performance evaluation certificate, if required), and (2) has
the vision evaluation and medical examination required by Sec. 391.44.
Individuals would be evaluated by a licensed ophthalmologist or
optometrist no more than 45 days before each annual or more frequent
examination by an ME. Even individuals who have a non-functional eye or
have lost an eye would be required to undergo vision evaluations at
least annually. Because of the potential for vision changes in the
remaining eye, it is important to monitor that eye's compliance with
the vision standard.
During the vision evaluation, the ophthalmologist or optometrist
would complete the proposed Vision Evaluation Report, Form MCSA-5871.
The report's instructions to the ophthalmologist or optometrist state
that completion of the report does not imply that the ophthalmologist
or optometrist is making a decision to qualify the individual to drive
a CMV. The instructions state further that any determination as to
whether the individual is physically qualified to drive a CMV will be
made by an ME.
The Agency is aware that the definition of ``monocular vision''
varies; therefore, the proposed Vision Evaluation Report, Form MCSA-
5871, includes FMCSA's definition of the term. The report defines
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 a 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. FMCSA's monocular vision definition has
been applied consistently for nearly 30 years.
The proposed Vision Evaluation Report, Form MCSA-5871, includes
instructions to the individual regarding the timeframe for providing
the report to the ME. The individual would be required to begin the
physical qualification examination no later than 45 calendar days after
the ophthalmologist or optometrist signs and dates the report, after
which time the Vision Evaluation Report is no longer valid. This
timeframe would ensure the ME is receiving the results of a recent
vision evaluation.
The Vision Evaluation Report, Form MCSA-5871, collects the
individual's name, date of birth, driver's license number, and State of
issuance. In addition, the report collects the following information:
(1) Whether the individual completing the report is an
ophthalmologist or an optometrist;
(2) The date of the vision evaluation;
[[Page 2359]]
(3) The distant visual acuity in each eye (corrected and
uncorrected), and, if corrected, the type of correction;
(4) The field of vision, including central and peripheral fields
in each eye, utilizing a testing modality that tests to at least 120
degrees in the horizontal. A formal perimetry test interpreted in
degrees is required and must be attached to the report;
(5) Whether the individual can recognize red, green, and amber
colors;
(6) The date of the last comprehensive eye examination;
(7) Whether the individual has monocular vision as defined by
FMCSA;
(8) The cause of the monocular vision;
(9) When the monocular vision began;
(10) The current treatment for the monocular vision;
(11) A medical opinion regarding whether the vision deficiency
is stable;
(12) A medical opinion regarding whether sufficient time has
passed to allow the individual to adapt to and compensate for the
change in vision; and
(13) Information regarding progressive eye conditions and
diseases, including the date of diagnosis, severity, current
treatment, whether the condition is stable, and a medical opinion
regarding whether a vision evaluation is required more often than
annually, and if so, how often.
The report requires the individual completing the report to attest
that the individual is an ophthalmologist or optometrist and that the
information provided is true and correct to the best of the
individual's knowledge. The report includes the date, printed name and
medical credential of the ophthalmologist or optometrist, signature,
professional license number and issuing State, phone number, and email
and street addresses. The report would be available on FMCSA's website.
The draft Vision Evaluation Report, Form MCSA-5871, is available in
the docket for this rulemaking. The Agency seeks public comment on the
substance and form of the report, as well as the four questions posed
in section XI.G. below, relating to the information collection titled
``Medical Qualification Requirements,'' regarding FMCSA's request for
OMB approval of the report and related information collection under the
Paperwork Reduction Act.
Under the proposed regulation, the individual examined,
ophthalmologist, or optometrist could provide the signed report to an
ME. An ME would have to receive a completed report for each examination
of an individual needing evaluation under Sec. 391.44. A report would
be considered complete when a response is provided to all data fields
and the ophthalmologist or optometrist signs, dates, and provides his
or her full name, office address, and telephone number on the report.
The report would be treated as part of the Medical Examination Report
Form, MCSA-5875, and would be retained by the ME for at least 3 years
from the date of the examination as required by 49 CFR 391.43(i).
Under the alternative vision standard, an individual would be
medically examined and certified by an ME at least annually as
physically qualified to operate a CMV. The ME would determine whether
the individual meets the physical qualification standards in Sec.
391.41. In making that determination, the ME would consider the
information in the Vision Evaluation Report, Form MCSA-5871, and
utilize independent medical judgment to apply the following four
standards proposed in Sec. 391.44:
(1) The individual would not be physically qualified to operate
a CMV 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 degrees in the horizontal meridian.
(2) The individual would not be physically qualified to operate
a CMV if the individual is not able to recognize the colors of
traffic signals and devices showing standard red, green, and amber.
(3) The individual would not be physically qualified to operate
a CMV if the individual's vision deficiency is not stable.
(4) The individual would not be 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 ME would consider the data and medical opinions provided by the
ophthalmologist or optometrist to assist in making a qualification
determination. The Vision Evaluation Report, Form MCSA-5871, should
include sufficient information for the ME to determine whether the
opinions expressed by the ophthalmologist or optometrist appear
informed and appropriate.
Consistent with current practice for any medical condition, if the
ME determines that additional information is necessary to make the
qualification determination, the ME could confer with the
ophthalmologist or optometrist for additional information concerning
the individual's related vision medical history and status, make
requests for other appropriate referrals, or request medical records
from the individual's treating provider, all with appropriate consent.
Because the ME is knowledgeable about the physical requirements to
operate a CMV and the physical qualification regulations, the ME would
continue to determine whether an individual meets FMCSA's physical
qualification standards.
In addition to adding the alternative vision standard in Sec.
391.44, the proposed rule would add a paragraph in Sec. 391.45 that
would require individuals physically qualified under proposed Sec.
391.44 to be medically examined and certified at least annually. As
with any individual, an ME would have discretion to certify an
individual for less than the maximum year if medical conditions
warrant.
B. Road Test in Accordance With 49 CFR 391.31
With limited exceptions, FMCSA proposes that 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. Once an individual is
physically qualified under Sec. 391.44 for the first time and receives
an MEC, Form MCSA-5876, the individual would consult Sec. 391.44(d) to
determine whether a road test may be required. The ME issuing the MEC,
Form MCSA-5876, would have no role with respect to the road test.
Paragraph (d)(1) would provide the general rule that, subject to
limited exceptions, an individual physically qualified under Sec.
391.44 for the first time could not drive a CMV until the individual
has successfully completed a subsequent road test and has been issued a
certificate of driver's road test in accordance with Sec. 391.31. Such
an individual would be required to inform the motor carrier responsible
for completing the road test under Sec. 391.31(b) when the individual
is required by Sec. 391.44(d) to have a road test. Motor carriers
would conduct the road test and issue a certificate of driver's road
test in accordance with Sec. 391.31(b) thorough (g). Motor carriers
are currently required to conduct a road test under Sec. 391.31 when
they hire a new driver, subject primarily to exceptions in Sec.
391.33. Therefore, many motor carriers and drivers are already familiar
with the road test and related documentation requirements.
Section 391.31(b) provides the road test must be given by the motor
carrier employing the individual or a person designated by the motor
carrier. If the individual is also a motor carrier (e.g., an owner-
operator), the road test must be given by a person other than the
individual. The road test must be given by a person competent to
evaluate and determine whether the individual taking the test
demonstrated that the individual is capable of operating the CMV, and
associated equipment, the
[[Page 2360]]
motor carrier intends to assign to the individual for operation.
The road test also must be of sufficient duration to enable the
person giving it to evaluate the skill of the individual taking it at
handling the CMV, and associated equipment, the motor carrier intends
to assign to the individual (49 CFR 391.31(c)). At a minimum, the road
test must include:
(1) The pre-trip inspection required by Sec. 392.7;
(2) Coupling and uncoupling of combination units (if the
equipment the individual may drive includes combination units);
(3) Placing the CMV in operation;
(4) Use of the CMV's controls and emergency equipment;
(5) Operating the CMV in traffic and while passing other motor
vehicles;
(6) Turning the CMV;
(7) Braking and slowing the CMV by means other than braking; and
(8) Backing and parking the CMV.
The motor carrier provides a road test form on which the person
giving the road test rates the individual taking it at each operation
that is a part of the test. The person giving the test signs the form
once it is complete (49 CFR 391.31(d)). If the road test is
successfully completed, the person giving it completes a certificate of
driver's road test in substantially the form prescribed in Sec.
391.31(f) (49 CFR 391.31(e)). A copy of the certificate of driver's
road test is given to the individual tested (49 CFR 391.31(g)). The
motor carrier retains in the individual's driver qualification file the
original of the signed road test form and the original, or a copy, of
the certificate of driver's road test (49 CFR 391.31(g)(1) and (2)).
The Agency seeks public comment on the information collection
associated with the Sec. 391.31 road test, particularly as required by
proposed Sec. 391.44 and the exception to the road test for intrastate
and excepted interstate drivers discussed below. The information
collection titled ``391.31 Road Test Requirement'' is described in
section XI.G. below regarding FMCSA's request for OMB approval of the
information collection under the Paperwork Reduction Act. Also, the
draft supporting statement for the information collection is available
in the docket for this rulemaking.
Paragraph (d)(2) would provide that the alternatives to a Sec.
391.31 road test in Sec. 391.33 do not apply to individuals required
to have a road test by Sec. 391.44(d). Accordingly, a motor carrier
could not accept certain CDLs or a copy of a certificate of driver's
road test issued within the preceding 3 years as an alternative to the
required road test. However, after an individual required to have a
road test by Sec. 391.44(d) successfully completes a road test and is
issued a certificate of driver's road test in accordance with Sec.
391.31 once, the provisions of Sec. 391.33 would apply to the
individual as they would normally operate. FMCSA notes that motor
carriers always have the option to require any individual to take a
road test as a condition of employment (see 49 CFR 391.33(c)).
Paragraphs (3), (4), and (5) of Sec. 391.44(d) would provide
exceptions to the general requirement for a road test. These
individuals would be excepted because they have already demonstrated
they can operate a CMV safely with the vision deficiency. Accordingly,
a road test would not be necessary.
Paragraph (3) would except an individual from the road test
requirement if the motor carrier determines the individual possessed a
valid CDL or non-CDL to operate, and did operate, a CMV in either
intrastate commerce or in interstate commerce excepted by Sec.
390.3T(f) or Sec. 391.2 from the requirements of 49 CFR part 391,
subpart E, with the vision deficiency for the 3-year period immediately
preceding the date of physical qualification under Sec. 391.44 for the
first time. To qualify for the exception, the individual would certify
in writing to the motor carrier the date the vision deficiency began.
The motor carrier would review employment information to determine
whether the individual operated a CMV for the required 3 years with the
vision deficiency. Many motor carriers would use employment information
obtained when investigating the individual's safety performance history
from previous employers for the prior 3 years when hiring a driver, as
required by Sec. 391.23(a)(2) and (d).
If the motor carrier determines the individual operated a CMV in
intrastate or excepted interstate commerce with the vision deficiency
for the required 3 years, the motor carrier would prepare a written
statement to that effect with the finding that the individual is not
required by Sec. 391.44(d) to complete a road test. A copy of the
written statement would be provided to the individual. The motor
carrier would retain the original of the written statement and the
original, or a copy, of the individual's certification regarding the
date the vision deficiency began in the driver qualification file.
Section 391.51, which provides what documents must be included in a
driver qualification file, would be amended to include the written
statement and certification.
Paragraphs (4) and (5) of Sec. 391.44(d), respectively, would
except individuals holding a valid Federal vision exemption or
medically certified under Sec. 391.64(b) on the effective date of any
final rule from the requirement to have a road test. Such individuals
would not be required to inform the motor carrier that they are
excepted from the requirement in Sec. 391.44(d)(1) to have a road
test.
The development of this proposed rule provided FMCSA with the
opportunity to review Sec. 391.31 in the context of current privacy
considerations. Section 391.31(e) provides that, if the road test is
successfully completed, the motor carrier must complete a certificate
of driver's road test ``substantially'' in the form prescribed in
paragraph (f). Paragraph (f) provides a Certification of Road Test that
lists, in part, the driver's social security number, the driver's
license number, and the State of issuance of the driver's license.
Because the road test is completed when hiring a driver, the motor
carrier already would have collected this information on other
employment documents. The motor carrier also would have verified the
identity of the driver and that the driver has a driver's license.
Accordingly, FMCSA proposes to remove this information from the list in
paragraph (f) because it is unnecessary and duplicative.
C. Elimination of Vision Exemption Program and Grandfather Provisions
The proposed rule would eliminate the need for the current vision
exemption program and the grandfather provisions of Sec. 391.64(b). As
discussed above in the background section of this NPRM, drivers who
participated in the Agency's vision waiver study program and were
holding valid waivers from the vision standard on March 31, 1996 could
continue to operate in interstate commerce under the grandfather
provisions of Sec. 391.64(b). If the proposed rule is adopted, the
Agency believes the grandfathering provisions would be redundant.
Therefore, FMCSA proposes that the approximately 1,900 individuals
physically qualified under Sec. 391.64(b) would have 1 year after the
effective date of any final rule to comply with the rule. During that
transition year, grandfathered individuals could elect to seek physical
qualification through the final rule or Sec. 391.64. This transition
year would provide time to learn the new process for individuals whose
MEC, Form MCSA-5876, expires near the time any final rule becomes
effective. However, 1 year after the effective date of the final rule
all MECs,
[[Page 2361]]
Form MCSA-5876, issued under Sec. 391.64(b) would become void.
FMCSA anticipates that individuals physically qualified under Sec.
391.64(b) would not be adversely affected by the proposed action.
Grandfathered drivers are already required to obtain annual vision
evaluations performed by an ophthalmologist or optometrist before their
physical qualification examinations and the proposed rule includes
similar qualification criteria. However, FMCSA seeks public comment
regarding whether the proposed alternative vision standard would
adversely affect any driver who is operating currently under Sec.
391.64(b).
Similarly, the 2,566 vision exemption holders would have 1 year
after the effective date of any final rule to comply with the rule, at
which time all exemptions issued under 49 U.S.C. 31315(b) would become
void. Drivers who hold a vision exemption would be notified by letter
with details of the transition to the new standard.
D. Change to the Medical Examination Process in 49 CFR 391.43(b)(1)
The Agency proposes 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. When
Sec. 391.43(a) was adopted in 1970, it provided that the medical
examination must be performed by a doctor of medicine or osteopathy,
which allowed an ophthalmologist to perform any part of the examination
(35 FR 6458, 6463, April 22, 1970). An exception was provided in
paragraph (b) to allow optometrists to perform the part of the medical
examination that involves visual acuity, field of vision, and the
ability to recognize colors. Section 391.43 has been amended several
times since 1970 and now provides that the medical examination must be
performed by an ME listed on the National Registry. The Agency did not
amend Sec. 391.43 at the time of the prior amendments to continue to
allow ophthalmologists to perform the vision portion of the medical
examination. Accordingly, the proposed rule would correct that
oversight.
E. Benefits of the Proposal to Drivers
The physical qualification process proposed in Sec. 391.44 would
eliminate the need for individuals to obtain and renew an exemption.
Drivers would 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.\67\ Publishing personal and medical information in the
Federal Register and seeking public comment about drivers would be
discontinued. Also, individuals would no longer be required to carry a
copy of the vision exemption when on duty as required by Sec.
391.41(a)(1)(ii) and (2)(iii) or provide a copy to their employers.
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\67\ As discussed below in the Paperwork Reduction Act section
XI.G. regarding the Medical Qualification Requirements information
collection, FMCSA attributes 2,236 annual burden hours at a cost of
$69,136 for drivers to obtain and maintain a vision exemption. The
proposed rule would eliminate this entire burden.
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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. The criterion that an individual should have 3 years of
experience driving a CMV with the vision deficiency precludes many
individuals from being eligible to obtain a Federal exemption. The only
way for an individual to get the CMV driving experience is to obtain
intrastate driving experience. To do that, the individual must obtain a
State vision waiver to operate in intrastate commerce, but not all
States issue vision waivers.\68\ The road test alternative addresses
this limitation and is much less burdensome than obtaining 3 years of
intrastate driving experience. Thus, the proposed rule would provide an
opportunity to operate as an interstate CMV driver regardless of the
driver's State of domicile. Individuals who live in a State that issues
vision waivers also would be able to begin a career as an interstate
CMV driver more quickly and may have more employment opportunities.
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\68\ The fact that some States have vision waiver programs for
intrastate CMV drivers provides additional evidence that individuals
who cannot meet either FMCSA's distant visual acuity or field of
vision standard, or both, in one eye are driving safely in
intrastate commerce. When FMCSA proposed changes to the eligibility
requirements for the exemption program in December 2013, an
individual commented that he did not understand why FMCSA requires
driving experience when his State issues a waiver without driving
experience. The comment is available in docket number FMCSA-2013-
0097 at https://www.regulations.gov/document?D=FMCSA-2013-0097-0003.
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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 to operating interstate
sooner. Currently, such individuals would have to obtain 3 years of
intrastate CMV driving experience, assuming they lived in a State that
offers vision waivers, once their vision is stable and they have had
time to adapt to and accommodated for the change in their vision before
they would be eligible to obtain a Federal exemption and return to
interstate driving.
IX. Section-by-Section Analysis
This section includes a summary of the proposed changes to 49 CFR
part 391. The regulatory changes proposed will be discussed first in
numerical order, followed by a discussion of proposed changes to Agency
guidance.
A. Regulatory Provisions
Section 391.31 Road Test
In Sec. 391.31, paragraph (f) would be amended by removing the
entries for 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. A new paragraph (h) would be added that
provides OMB reviewed the information collection requirements in Sec.
391.31 and assigned an OMB control number.
Section 391.41 Physical Qualifications for Drivers
In Sec. 391.41(b)(10), the current vision standard would be
renumbered as paragraph (b)(10)(i) without any textual changes. An
alternative standard would be added in paragraph (b)(10)(ii) that would
allow an individual who cannot satisfy either the current distant
visual acuity or field of vision standard, or both, in one eye to be
physically qualified under proposed Sec. 391.44.
Section 391.43 Medical Examination; Certificate of Physical Examination
In Sec. 391.43(b)(1), an ophthalmologist would be added 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. Textual changes also
would be made to improve readability.
Section 391.44 Physical Qualification Standards for an Individual Who
Cannot Satisfy Either the Distant Visual Acuity or Field of Vision
Standard, or Both, in One Eye
A new Sec. 391.44 would be added.
Paragraph (a) would apply so an individual who cannot satisfy
either the current distant visual acuity or field of vision standard,
or both, in one eye can be physically qualified to operate a CMV in
interstate commerce. Such an individual would be physically qualified
if the individual meets the
[[Page 2362]]
other physical qualification standards in Sec. 391.41(b) (or has an
exemption or skill performance evaluation certificate, if required),
and has the vision evaluation and medical examination required by
paragraphs (b) and (c), respectively.
Paragraph (b) would require the individual to have a vision
evaluation completed by a licensed ophthalmologist or optometrist
before each physical qualification examination. The ophthalmologist or
optometrist would complete the proposed Vision Evaluation Report, Form
MCSA-5871, during the individual's evaluation, including signing and
dating the report and providing business contact information.
Paragraph (c) would set forth the requirements for the ME's
examination, including that the examination must begin no later than 45
days after the ophthalmologist or optometrist signs and dates the
Vision Evaluation Report, Form MCSA-5871. The ME would have to receive
a completed report for each examination of an individual needing
evaluation under Sec. 391.44. The report would be treated and retained
as part of the Medical Examination Report Form, MCSA-5875. The ME would
make a physical qualification determination by considering the
information in the Vision Evaluation Report, Form MCSA-5871, and using
independent medical judgment in applying four standards. The standards
would provide that 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 to adapt to
and compensate for changes in vision.
Paragraph (d) would provide an individual physically qualified
under Sec. 391.44(d) for the first time could not drive a CMV 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. A motor carrier could not
accept in place of a road test required by Sec. 391.44(d) the
alternatives provided in Sec. 391.33. Individuals would be excepted
from the road test requirement if they had a valid license and operated
in intrastate or excepted interstate commerce with the vision
deficiency for the 3-year period immediately preceding the date of
physical qualification under Sec. 391.44 for the first time, or held a
valid Federal vision exemption or were medically certified under Sec.
391.64(b) on the effective date of any final rule.
Section 391.45 Persons Who Must Be Medically Examined and Certified
Section 391.45 would be amended by renumbering existing paragraphs
(f) and (g) as paragraphs (g) and (h), respectively. A new paragraph
(f) would be added to require any driver certified under proposed Sec.
391.44 to be recertified at least every 12 months. Conforming changes
would be made in paragraph (b) to reflect the addition of a new
paragraph to this section.
Section 391.51 General Requirements for Driver Qualification Files
Conforming changes would be made to Sec. 391.51. Paragraph (b)(3)
would be amended to include in the driver qualification file the
original of the written statement from the motor carrier required by
Sec. 391.44(d)(3)(ii)(A), as well as the original, or a copy, of the
certification from the driver required by Sec. 391.44(d)(3)(i).
Section 391.64 Grandfathering for Certain Drivers Who Participated in
the Vision Waiver Study Program
FMCSA would revise the title of Sec. 391.64 to reflect that the
regulation is now applicable only to drivers who participated in the
vision waiver study program. Language would be inserted at the
beginning of existing paragraph (b) to provide that any final rule
resulting from this NPRM would not apply to individuals certified
pursuant to Sec. 391.64(b) until 1 year after the effective date of
the rule. During that year, individuals certified under the grandfather
provisions could choose to be certified under Sec. 391.64(b) or the
final rule. A new paragraph (b)(4) would be added to remove and void
all of paragraph (b) 1 year after the effective date of the final rule;
thus, eliminating certification under Sec. 391.64(b). Paragraph (b)(4)
would provide that any MEC, Form MCSA-5876, issued under the provisions
of Sec. 391.64(b) would become void 1 year after the effective date of
the final rule. In addition, instructions would be provided to remove
and reserve Sec. 391.64 1 year after the effective date of the final
rule. Cross references to Sec. 391.64 in existing regulations would be
eliminated in future rulemakings.
B. Guidance Statements and Interpretations
This rulemaking proposes to amend a regulation that has associated
guidance statements or interpretations. Such guidance statements do not
have the force and effect of law and are not meant to bind the public
in any way. They are intended only to provide clarity to the public
regarding existing requirements under the law or FMCSA policies.
Guidance statements will not be relied on by FMCSA as a separate basis
for affirmative enforcement action or other administrative penalty.
Conformity with guidance statements is voluntary, and nonconformity
will not affect rights and obligations under existing statutes or
regulations. Rather, guidance is strictly advisory and intended to
provide information that helps to support the application of the
standards in the regulations or to serve as a reference. A guidance
statement does not alter the meaning of a regulation.
Appendix A to Part 391--Medical Advisory Criteria
Appendix A to Part 391 is published at the end of part 391 in the
CFR. The appendix contains guidelines in the form of Medical Advisory
Criteria to help MEs assess a driver's physical qualification to
operate a CMV under the standards set forth in Sec. 391.41(b). FMCSA
proposes to remove section II. J., Vision: Sec. 391.41(b)(10), of
Appendix A to Part 391 in its entirety.
Interpretations for Sec. 391.41
Interpretations for specific regulations are available through the
Guidance Portal on FMCSA's website. FMCSA proposes to revise the
guidance to Question 3 of the interpretations for Sec. 391.41.\69\
FMCSA would conform the language to the number of medical conditions
that would not be subject to an ME's judgment (i.e., two), and remove
``vision'' from the list of conditions for which an ME has no
discretion. The interpretative guidance for Question 3 would thus read
as follows:
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\69\ See https://www.fmcsa.dot.gov/medical/driver-medical-requirements/what-are-physical-qualification-requirements-operating-cmv (last accessed August 20, 2020).
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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 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
[[Page 2363]]
functions and whether a particular condition would interfere with the
driver's ability to operate a CMV 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. International Impacts
The FMCSRs, and any exceptions to the FMCSRs, apply only within the
United States (and, in some cases, United States territories). 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 would
notify Canada if an alternative vision standard is adopted and propose
the countries review their applicable vision standards to determine
whether they remain equivalent.
XI. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563 (Improving
Regulation and Regulatory Review), and DOT Regulations
FMCSA performed an analysis of the impacts of the proposed rule and
determined it is not a significant regulatory action under section 3(f)
of E.O. 12866 (58 FR 51735, October 4, 1993), Regulatory Planning and
Review, as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011),
Improving Regulation and Regulatory Review. Accordingly, OMB has not
reviewed it under that Order. It is also not significant within the
meaning of DOT regulations (49 CFR 5.13(a)). The Agency has determined
that the proposed rule would result in cost savings.
A preliminary Regulatory Impact Assessment follows:
Baseline for the Analysis
The current physical qualification standard to drive a CMV requires
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 degrees in the horizontal
meridian of each eye; and the ability to recognize the colors of
traffic signals and devices showing standard red, green, and amber (49
CFR 391.41(b)(10)). This standard has been in effect since 1971.
Drivers who do not meet either the distant visual acuity or field
of vision standard, or both, in one eye may apply to FMCSA for an
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.\70\ Among the documentation is a signed
statement by an ophthalmologist or optometrist showing evaluation of
the driver within the last 3 months and which:
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\70\ 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 July 16, 2019).
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Identifies and defines the nature of the vision
deficiency, including how long the individual has had the deficiency;
States the date of examination;
Certifies that the vision deficiency is stable;
Identifies the visual acuity of each eye, corrected and
uncorrected;
Identifies 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;
Identifies whether the individual can recognize the colors
of traffic control signals and devices showing red, green, and amber;
and
Certifies that in his or her medical opinion, the
individual has sufficient vision to perform the driving tasks required
to operate a commercial vehicle.
FMCSA must publish notice of the request for an exemption and
provide the public opportunity to comment. The notice granting the
exemption must identify the individual who will receive the exemption,
the provisions from which the individual will be exempt, the effective
period, and all terms and conditions of the exemption. The Agency's
terms and conditions 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.
Currently, FMCSA grants exemptions to applicants who meet specific
criteria, including stable vision and experience safely operating a CMV
with the vision deficiency.\71\ If 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
FMCSRs (49 CFR 381.330).
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\71\ Applicants should have 3 years of intrastate driving
experience in a CMV; no suspensions or revocations of the
applicant's license for operating violations in any motor vehicle;
no involvement in a crash in which the applicant contributed or was
cited for a moving traffic violation; no convictions for a
disqualifying offense, as described in 49 CFR 383.51(b) (e.g.,
driving while under the influence of alcohol or a controlled
substance, leaving the scene of an accident, or the commission of a
felony involving the use of a vehicle); more than one serious
traffic violation, as described in Sec. 383.51(c) (e.g., excessive
speeding, reckless driving, improper or erratic lane changes,
following the vehicle ahead too closely, or a violation arising in
connection with a fatality) while driving a CMV; and no more than
two convictions for any other moving traffic violations while
driving a CMV.
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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, 2,566 drivers hold a vision exemption.\72\ Compared to
all interstate CMV drivers operating in the United States in 2017 (3.7
million, including 3.2 million who hold CDLs),\73\ these drivers
represent less than 0.1 percent of the population.\74\
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\72\ FMCSA data as of July 2, 2019.
\73\ FMCSA 2018 Pocket Guide to Large Truck and Bus Statistics,
available at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/safety/data-and-statistics/413361/fmcsa-pocket-guide-2018-final-508-compliant-1.pdf (last accessed July 16, 2019).
\74\ Compared to all (interstate and intrastate) CMV drivers,
6.1 million, or CDL drivers, 4.2 million, the percentage is even
lower.
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There are approximately 1,900 active grandfathered drivers.\75\
FMCSA checks the driving records of grandfathered drivers to determine
if they continue to operate CMVs safely.
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\75\ 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.
---------------------------------------------------------------------------
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.
[[Page 2364]]
Impact of the Proposed Rule: Physical Qualification and Road Test
Physical Qualification
Should this proposal become a final rule, an individual who cannot
meet either the distant visual acuity or field of vision standard, or
both, in one eye could be physically qualified without applying for or
receiving an exemption. The individual would still have to receive a
vision evaluation by an ophthalmologist or optometrist. The
ophthalmologist or optometrist would complete the Vision Evaluation
Report, Form MCSA-5871, which in part:
States the date of the vision evaluation;
Identifies the distant visual acuity in both eyes,
uncorrected and corrected;
Identifies the field of vision, including central and
peripheral fields, utilizing a testing modality that tests to at least
120 degrees in the horizontal;
Identifies whether the individual can recognize the
standard red, green, and amber traffic control signal colors;
Identifies whether the individual has monocular vision as
it is defined by FMCSA and if so, the cause and when it began;
Identifies current treatment;
Provides a medical opinion regarding whether the vision
deficiency is stable;
Provides a medical opinion regarding whether sufficient
time has passed to allow the individual to adapt to and compensate for
monocular vision;
Identifies whether the individual has any progressive eye
condition or disease and if so, the date of diagnosis, severity (mild,
moderate, or severe), current treatment, and whether the condition is
stable; and
Provides a medical opinion regarding whether a vision
evaluation is required more often than annually and if so, how often.
The individual examined, ophthalmologist, or optometrist would provide
the signed report to an ME who would determine whether the individual
is physically qualified to operate a CMV. Upon receipt of a completed
and signed MEC, Form MCSA-5876, the individual would not incur any
further delay in qualification.
Under the vision exemption program, the Agency determines whether
to provide the exemption that enables the driver to obtain physical
qualification. Under the proposed rule, the ME would make the physical
qualification determination. The Agency lacks data to determine how the
proposed change might affect qualification determinations. However, the
outcomes of the ME qualification determinations may differ from those
that would be made under the exemption program.
For those who obtain an MEC, Form MCSA-5876, the proposed action
may represent a streamlined process compared to the requirements of the
vision exemption program in that the driver would 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.
If the proposed rule becomes a final rule, it would result in the
discontinuation of the Federal vision exemption program. Instead, the
physical qualification determination of these individuals would be made
by the ME, who is trained and qualified to make such determinations,
considering the information received in the vision report 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, FMCSA
proposes that individuals physically qualified under the proposed
alternative vision standard for the first time must complete a road
test before operating in interstate commerce. As described in Section
VII. Rationale for Proposed Qualification Standard, individuals would
be excepted from the road test requirement if they have 3 years of
intrastate or 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. The road test would be conducted by motor carriers in
accordance with the road test already required by Sec. 391.31.
FMCSA finds that a road test would be 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 FHWA 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
(April 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 comply with the criteria of
the Federal vision exemption program. The removal of the 3-year
experience criterion under the proposed rule could more readily allow
these individuals to operate in interstate commerce. However, the
current number of exemption holders, grandfathered drivers, and
applicants denied exemptions represents less than 1 percent of all
interstate CMV drivers.
The Agency anticipates the proposed action would be safety neutral.
FMCSA notes that, although it would no longer directly monitor the
safety performance of drivers, motor carriers would 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 proposed rule would result in incremental
cost savings of approximately $1.6 million annually from the
elimination of the Federal vision exemption program and contract
expenditures (Table 4). As described in detail below, FMCSA also
accounts for the annual cost of a road test at approximately $47,000.
Table 4--Cost Savings: Federal Vision Exemption Program Contract and Road Test
----------------------------------------------------------------------------------------------------------------
Fiscal year Contract cost Road test Total
----------------------------------------------------------------------------------------------------------------
2020-2021....................................................... ($1,531,633) $47,137 ($1,484,496)
2021-2022....................................................... (1,577,268) 47,137 (1,530,131)
2022-2023....................................................... (1,624,586) 47,137 (1,577,449)
[[Page 2365]]
2023-2024....................................................... (1,673,324) 47,137 (1,626,187)
----------------------------------------------------------------------------------------------------------------
Note: For years 2022-2023 and 2023-2024, FMCSA estimated an average contract cost increase of 3 percent and
extrapolated based on the percent increase of previous years.
The 2,566 current vision exemption holders would no longer have to
apply for an exemption, and potential applicants 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. As
described in Section VIII. Discussion of Proposed Rule, this may lead
to a reduction in burden, as drivers would 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 would result in a total annual
cost impact of $47,000 (Table 5). There would be approximately 1,085
drivers \76\ 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 2017 through 2019.\77\ As described
above, motor carriers would 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 $28 for the drivers (Table 6) and $51
for the motor carrier's compliance officer.\78\
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\76\ FMCSA recognizes that using 1,085 as the driver population
is a high estimation and overstates the burden associated with the
proposed requirement in Sec. 391.44 for a road test. Some of the
individuals would already be required to obtain a road test under
Sec. 391.31, in the absence of the requirement in Sec. 391.44(d).
However, FMCSA lacks internal data to estimate how many individuals
would already be required to obtain a Sec. 391.31 road test.
Therefore, FMCSA opted for a conservative approach of assuming all
1,085 individuals would require a road test.
\77\ In 2017 there were 1,151 applicants, in 2018 there were
1,073, and in 2019 there were 1,030 ((1,151 + 1,073 + 1,030)/3 =
1,085).
\78\ Bureau of Labor Statistics (2020). ``Occupational
Employment and Wages, May 2019, 13-1041 Compliance Officers,''
available at https://www.bls.gov/oes/current/oes131041.htm (last
accessed August 16, 2020).
Table 5--Road Test Cost Calculations
[2019$]
------------------------------------------------------------------------
------------------------------------------------------------------------
Drivers/Motor Carriers.................................. 1,085
Test Hours.............................................. 0.55
Driver Wage............................................. $27.88
---------------
Subtotal............................................ $16,634
===============
Compliance Officer Wage................................. $51.13
---------------
Subtotal............................................ $30,502
===============
Sum............................................. $47,137
------------------------------------------------------------------------
Table 6--Wage Rates for CMV Truck Drivers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Median hourly
BLS SOC North American Industry Classification Total Median Fringe base wage +
Occupational title code System (NAICS) occupational designation employees hourly base benefits fringe
wage rate (%) benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Heavy and Tractor-Trailer Truck Drivers. 53-3032 All Industry.............................. 1,856,130 $21.76 45 $31.55
Light Truck or Delivery Service Driver.. 53-3033 All Industry.............................. 923,050 16.70 45 24.22
Weighted Driver Wage.................... ........... .......................................... ........... ........... ........... 27.88
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: BLS. May 2019 OES Database, National, All Industries, available at http://www.bls.gov/oes/ (last accessed September 10, 2020).
Although the Agency acknowledges there may be motor carriers
employing multiple drivers, FMCSA lacks data to estimate the exact
number of motor carriers. 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 $47,000 a
likely overestimate. Additionally, there may be some drivers who are
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, and the Agency
invites public comment from owner-operators to further inform this
assumption. Using this approach, the Agency estimates a per entity
impact of $43.46.\79\
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\79\ ($51.13 x 0.55) + ($27.88 x 0.55) = $43.46.
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Benefits
As described in Section VIII. Discussion of Proposed Rule,
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 an interstate CMV driver without compromising
safety. The proposed alternative vision standard would allow 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 to return to operating interstate sooner. 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 interstate. A one-time road test would
also be 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
would provide more drivers the opportunity to operate a CMV.
Regarding risk, the Agency anticipates no changes in risk resulting
from the very small number of additional individuals affected by this
proposed rule relative to those of the baseline. Therefore, FMCSA
considers the proposed rule to be safety neutral.
[[Page 2366]]
B. E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs)
The Agency expects this proposed rule to have total costs less than
zero, and, if finalized, to qualify as an E.O. 13771 deregulatory
action. The present value of the cost savings of this proposed rule,
measured on an infinite time horizon at a 7 percent discount rate,
expressed in 2016 dollars, and discounted to 2021 (the year the
proposed rule would go into effect and cost savings would first be
realized), would be $20.9 million. On an annualized basis, these cost
savings would be $1.5 million.
For E.O. 13771 accounting, the April 5, 2017, OMB guidance requires
that agencies also calculate the costs and cost savings discounted to
year 2016. In accordance with this requirement, the present value of
the cost savings of this rule, measured on an infinite time horizon at
a 7 percent discount rate, expressed in 2016 dollars, and discounted to
2016, would be $14.9 million. On an annualized basis, the cost savings
would be $1 million.
C. Congressional Review Act
This proposed rule is not a major rule as defined under the
Congressional Review Act (5 U.S.C. 801-808).
D. 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,\80\ requires Federal agencies to consider the impact of their
regulatory actions on small entities, analyze effective alternatives
that minimize small entity impacts, and make their analyses available
for public comment. The term ``small entities'' means 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 under 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 entities. Section 605 of the RFA
allows an Agency to certify a rule, in lieu of preparing an analysis,
if the rulemaking is not expected to have a significant economic impact
on a substantial number of small entities.
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\80\ Public Law 104-121, 110 Stat. 857, March 29, 1996.
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This rule would affect 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 North American Industry
Classification System (NAICS).\81\ This rule could 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 Bureau of Labor Statistics with NAICS industry codes.
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\81\ ``North American Industry Classification System'' (2017),
available at https://www.census.gov/eos/www/naics/2017NAICS/2017_NAICS_Manual.pdf (last accessed January 15, 2020).
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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.\82\ One measure that
could be used to illustrate a significant impact is labor costs,
specifically, if the cost of the regulation exceeds 1 percent of the
average annual revenues of small entities in the sector. Given the
proposed rule's average annual per-entity impact of $43.46, a small
entity would need to have average annual revenues of less than $4,346
to experience an impact greater than 1 percent of average annual
revenue, which is an average annual revenue that is smaller than would
be required for a firm to support one employee. Therefore, I certify
this rule would not have a significant impact on the entities affected.
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\82\ SBA, Office of Advocacy, ``A Guide for Government Agencies.
How to Comply with the Regulatory Flexibility Act'' (2017),
available at https://www.sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf (last accessed January 16, 2020).
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E. Assistance for Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities
in understanding this proposed rule so that they can better evaluate
its effects on themselves and participate in the rulemaking initiative.
If the proposed rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance; please consult the FMCSA point of
contact, Ms. Christine Hydock, listed in the FOR FURTHER INFORMATION
CONTACT section of this proposed rule.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business Administration'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. 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.
F. 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 $168 million (which is the
value equivalent of $100 million in 1995, adjusted for inflation to
2019 levels) or more in any 1 year. Though this proposed rule would not
result in such an expenditure, the Agency discusses the effects of this
rule elsewhere in this preamble.
G. Paperwork Reduction Act (Collection of Information)
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,
[[Page 2367]]
unless it displays a valid OMB control number (5 CFR 1320.8(b)(3)(vi)).
The proposed rule would impact 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-TBD.\83\ The ICRs will be
discussed separately below, followed by a discussion of the net
information collection and reporting burdens of the proposed rule.
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\83\ The OMB control number will be determined and assigned by
OMB upon approval of the ICR.
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1. Related Information Collection Requests
a. Medical Qualification Requirements ICR
This proposed rule would amend the existing approved Medical
Qualification Requirements ICR, OMB control number 2126-0006, which
expires on November 30, 2021. Specifically, FMCSA seeks approval for
the revision of the ICR due to the Agency's development of this
proposed rule, which includes the use of the proposed Vision Evaluation
Report, Form MCSA-5871. In accordance with 44 U.S.C. 3507(d), FMCSA
will submit the proposed information collection amendments to OIRA at
OMB for its approval.
Title: Medical Qualification Requirements.
OMB Control Number: 2126-0006.
Type of Review: Revision of a currently-approved information
collection.
Summary: FMCSA proposes to establish an alternative vision standard
for individuals who cannot satisfy either the current distant visual
acuity or field of vision standard, or both, in one eye. FMCSA proposes
a two-step process for physical qualification of these individuals
that, if adopted, would replace the current vision exemption program as
a basis for determining the physical qualification of these individuals
to operate a CMV. 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, at a
physical qualification examination, an ME would consider the
information provided on the Vision Evaluation Report, Form MCSA-5871,
and determine whether the individual meets the proposed alternative
vision standard and FMCSA's other physical qualification standards. If
so, the ME could issue an MEC, Form MCSA-5876, for up to a maximum of
12 months. The proposed 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.
Because of the proposed action, a new information collection, IC-8
Qualifications of Drivers; Vision Standard, would be added to the
existing ICR. FMCSA estimates that ophthalmologists and optometrists
would complete 3,614 Vision Evaluation Reports, Form MCSA-5871,
annually and that it would take them 8 minutes to complete a report.
Thus, the estimated annual burden hours associated with the proposed
information collection is 482 hours (3,614 forms x 8 minutes per form /
60 minutes = 482 hours, rounded to the nearest whole hour). At an
average hourly labor cost of $82.40 for optometrists, the estimated
salary cost associated with this information collection is $39,717
($82.40 hourly labor costs x 482 hours = $39,717, rounded to the
nearest dollar). Additional information is provided in the draft
supporting statement for the Medical Qualification Requirements ICR,
which is available in the docket.
Estimated number of respondents: 3,614 ophthalmologists and
optometrists.
Estimated responses: 3,614.
Frequency: At least annually.
Estimated burden hours: 482.
Estimated cost: $39,717.
The proposed alternative vision standard would eliminate the need
for the Federal vision exemption program and the related information
collection (IC-3a). The current 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
2,236 annual burden hours to obtain and maintain a vision exemption,
and this proposed rule would eliminate this entire burden. However, it
would add 482 burden hours for the information collection associated
with completion of the Vision Evaluation Report, Form MCSA-5871. Thus,
the net effect of the proposed rule would be a reduction in burden
hours of 1,754 (482 hours related to the vision report-2,236 hours
related to the current vision exemption program = -1,754). The net
effect of the proposed rule with respect to cost would be a reduction
of $29,419 ($39,717 related to the vision report -$69,136 related to
the current vision exemption program = -$29,419).
The revised total annual estimated burden associated with the
Medical Qualification Requirements ICR that reflects the addition of
this proposed information collection and the completion of the Vision
Evaluation Report, Form MCSA-5871; the elimination of the Federal
vision exemption program; updated driver population, program
statistics, National Registry statistics, and wage data; and regulatory
changes is as follows.
Total estimated number of respondents: 5,586,232 CMV drivers, motor
carriers, MEs, treating clinicians, ophthalmologists, and optometrists.
Total estimated responses: 27,202,863.
Total estimated burden hours: 2,251,571.
Total estimated cost: $171,044,474.
b. Section 391.31 Road Test Requirement ICR
FMCSA proposes a new Sec. 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 also would include the incremental
burden for motor carriers associated with Sec. 391.31 road tests due
to FMCSA's development of this proposed rule. In accordance with 44
U.S.C. 3507(d), FMCSA will submit the new ICR to OIRA at OMB for its
approval.
Title: 391.31 Road Test Requirement.
OMB Control Number: 2126-TBD.
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, April 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
[[Page 2368]]
of 1935 \84\ (1935 Act) and the Motor Carrier Safety Act of 1984 \85\
(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.
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\84\ Public Law 74-255, 49 Stat. 543, August 9, 1935.
\85\ Public Law 98-554, 98 Stat. 2829, 2832, October 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 amidst the various physical and
mental demands of truck 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.
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)).
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 burden 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 $51.13 per
hour. The median salary for a file clerk is $25.63 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 proposed Sec. 391.44 (IC-2).
IC-1 consists of the three reporting and recordkeeping tasks motor
carriers perform regarding the road test required by Sec. 391.31 when
they hire a new driver. The respondent universe is the number of motor
carriers required to complete a road test for drivers hired. To
determine the number of drivers who will be hired and require a road
test, FMCSA first determines the driver population subject to the road
test requirement. Because Sec. 391.33 allows motors carriers to accept
a valid CDL instead of the Sec. 391.31 road test, the driver
population is non-CDL interstate and intrastate drivers. To find the
driver populations in 2022, 2023, and 2024 (the 3 years projected to be
reflected in the ICR), FMCSA adjusts the driver population by
multiplying it by the growth rate for driver occupations typical in the
light vehicle industry (i.e., 5 percent). Next, FMCSA estimates the
total number of job openings per year by multiplying the adjusted total
driver population by the industry turnover rate (i.e., 79.2 percent).
Because drivers may present a certificate of driver's road test for up
3 years from when it is completed under Sec. 391.33, FMCSA estimates
one-third of drivers will be required to have a road test each year of
the ICR. The resulting number is the respondent universe, i.e., the
number of motor carriers required to complete a road test for drivers
hired.
For each of the three Sec. 391.31 road test reporting and
recordkeeping tasks motor carriers perform when they hire a new driver,
FMSCA estimates the motor carrier burden hours by multiplying the
number of respondents by the hourly burden for each task. Then FMCSA
estimates the motor carrier cost by multiplying the burden hours by the
median salary for the person performing the task. The total motor
carrier burden hours and cost for the three tasks 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 proposed rule that individuals physically qualified
under the alternative vision standard in Sec. 391.44 for the first
time would be required to complete a road test in accordance with Sec.
391.31. FMCSA uses the same three reporting and recordkeeping tasks,
time estimates, labor costs, and overall methodology discussed above to
calculate the annual burden hours and cost associated with the proposed
rule. However, FMCSA estimates the respondent universe of 1,085 motor
carriers by averaging the number of new requests for a Federal vision
exemption in 2017, 2018, and 2019 ((1,151 + 1,073 + 1,030)/3 = 1,085).
FMCSA recognizes that using 1,085 as the driver population is a
high estimation and overstates the burden associated with the proposed
requirement in Sec. 391.44 for a road test. Some of the individuals
would already be required to obtain a road test under Sec. 391.31, in
the absence of the requirement in Sec. 391.44(d). However, FMCSA lacks
internal data to estimate how many individuals would already be
required to obtain a Sec. 391.31 road test. Therefore, FMCSA opted for
a conservative approach of assuming all
[[Page 2369]]
1,085 individuals would require a road test.
In addition, Sec. 391.44(d)(3) would provide an exception to the
road test requirement for some individuals. If the motor carrier
determines an individual possessed a valid CDL or non-CDL license to
operate, and did operate, a CMV in either intrastate commerce or in
exempt interstate commerce with the vision deficiency for the 3-year
period immediately preceding the date of physical qualification under
Sec. 391.44 for the first time, the individual would not be required
to complete a Sec. 391.31 road test. FMCSA lacks internal data to
estimate how many individuals would be excepted from a road test by
this provision, but expects only a small number of individuals would
qualify for the exception. In addition, the paperwork burden to except
an individual from the road test requirement would be less than the
burden for the individual to take the road test. Therefore, FMCSA opted
for a conservative approach of assuming all 1,085 individuals would
require a road test.
The estimated incremental annual burden associated with the
requirement in the proposed rule that individuals physically qualified
under Sec. 391.44 for the first time would be required to complete a
road test in accordance with Sec. 391.31 (IC-2), is as follows.
Estimated number of respondents: 1,085 motor carriers.
Estimated responses: 3,255.
Estimated burden hours: 609.
Estimated cost: $30,578.
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: 560,809 motor carriers.
Total estimated responses: 2,306,709.
Total estimated burden hours: 430,588.
Total estimated cost: $21,623,811.
Additional information for the assumptions, calculations, and
methodology summarized above is provided in the draft 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 above, the net effect of the proposed rule on the Medical
Qualification Requirements ICR would be a reduction in burden hours of
1,754 and in cost of $29,419. The effect of the proposed rule on the
391.31 Road Test Requirement ICR would be an addition in burden hours
of 609 and in cost of $30,578. Thus, the net effect of the proposed
rule would be a reduction in burden hours of 1145 (-1,754 hours related
to the Medical Qualification Requirements ICR + 609 hours related to
the 391.31 Road Test Requirement ICR = -1,145). The net effect of the
proposed rule with respect to cost would be an addition of $1,159 (-
$29,419 related to the Medical Qualification Requirements ICR + $30,578
related to the 391.31 Road Test Requirement ICR = $1,159).
3. Request for Comments
FMCSA asks for comment on the information collection requirements
of this proposed 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 section I.E. at the beginning
of this NPRM.
H. 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 determined that this proposal would not have
substantial direct costs on or for States, nor would 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.
I. Privacy
Section 522 of title I of division H of the Consolidated
Appropriations Act, 2005,\86\ requires the Agency to conduct a privacy
impact assessment of a regulation that will affect the privacy of
individuals. In accordance with this Act, a privacy impact assessment
is warranted to address any privacy implications contemplated in the
proposed rulemaking.
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\86\ Public Law 108-447, 118 Stat. 2809, 3268, December 8, 2004
(5 U.S.C. 552a note).
---------------------------------------------------------------------------
With respect to the proposed Vision Evaluation Report, Form MCSA-
5871, the DOT Chief Privacy Officer has evaluated the risks and effects
that this rulemaking might have on collecting, storing, and sharing
personally identifiable information and has examined protections and
alternative information handling processes in developing the proposal
to mitigate potential privacy risks. The privacy risks and effects
associated with this proposed 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), available at https://www.transportation.gov/privacy. The DOT Chief Privacy Officer has
determined that a new system of records notice for this rulemaking is
not required.
In this rulemaking, FMCSA proposes a two-step process for the
physical qualification of individuals who cannot satisfy either the
current distant visual acuity or field of vision standard, or both, in
one eye. First, an individual seeking physical qualification would
obtain a vision evaluation from an ophthalmologist or optometrist who
would record the requested information on the proposed Vision
Evaluation Report, Form MCSA-5871. Next, at a physical qualification
examination, an ME would consider the information provided on the
Vision Evaluation Report, Form MCSA-5871, and determine whether the
individual is physically qualified to operate a CMV safely. The Vision
Evaluation Report, Form MCSA-5871, would be used exclusively as part of
the physical qualification process and would collect only information
that is necessary to assist the ME in making a physical qualification
determination.
The information collected on the Vision Evaluation Report, Form
MCSA-5871, would provide a means for healthcare professionals to
exchange information about an individual who cannot satisfy either the
current distant visual acuity or field of vision standard, or both, in
one eye. 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
[[Page 2370]]
information would be generated because of this proposed rule.
The Agency expects that this information would be safeguarded along
with all the other medical information that these healthcare providers
maintain. In other words, the ophthalmologist or optometrist would
maintain certain medical records about the individual based on his or
her vision evaluation, and the ME would maintain certain medical
records to support the physical qualification determination. The Vision
Evaluation Report, Form MCSA-5871, would be attached to the Medical
Examination Report Form, MCSA-5875, that must be maintained by the ME
for at least 3 years from the date of the examination. The Vision
Evaluation Report, Form MCSA-5871, would be provided only to FMCSA upon
request if there were an investigation or audit. Therefore, this
proposed rule would provide 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, would be maintained by the ME at his or her
office. However, as healthcare providers, MEs are required to maintain
and disclose medical information and personally identifiable
information in accordance with applicable Federal and State privacy
laws.
With respect to the proposed requirement for a road test as part of
the alternative vision standard, the Agency has completed a Privacy
Threshold Assessment to evaluate the risks and effects the proposed
requirement might have on collecting, storing, and sharing personally
identifiable information. The Privacy Threshold Assessment has been
submitted to FMCSA's Privacy Officer for review and preliminary
adjudication and will be submitted to DOT's Privacy Officer for review
and final adjudication.
J. 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.
K. National Environmental Policy Act of 1969
FMCSA analyzed this proposed rule for purposes of 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, March 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.
List of Subjects in 49 CFR Part 391
Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor
carriers, Reporting and recordkeeping requirements, Safety,
Transportation.
For the reasons set forth in the preamble, FMCSA proposes to amend
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. Revising paragraph (f) by deleting the entry lines for ``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 pursuant to the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.) and have been
assigned OMB control number 2126-TBD.
0
3. Revise Sec. 391.41 paragraph (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;
* * * * *
0
4. Revise Sec. 391.43 paragraph (b)(1) to read as follows:
Sec. 391.43 Medical examination; certificate of physical
examination.
* * * * *
(b) * * *
(1) A licensed ophthalmologist or 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:
Sec. 391.44 Physical qualification standards for an individual who
cannot satisfy either the distant visual acuity or field of vision
standard, or both, in one eye.
(a) General. 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 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 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,
[[Page 2371]]
the ophthalmologist or optometrist must sign and date the Report and
provide his or her full name, office address, and telephone number on
the Report.
(c) Examination by a medical examiner. 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.
(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 there has not been sufficient time 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 of this part. 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 Sec. 391.44(d) 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 of this part 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 of this part from the
requirements of subpart E of this part 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) or Sec. 391.2 from the requirements of subpart E of this
part with the vision deficiency for the 3-year period immediately
preceding the date of physical qualification in accordance with Sec.
391.44 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 excepted
interstate commerce (as applicable) with the vision deficiency for the
3-year period immediately preceding the date of physical qualification
in accordance with Sec. 391.44 for the first time and, therefore, is
not required by Sec. 391.44(d) 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 holds on [DATE 60 DAYS AFTER THE DATE OF
PUBLICATION OF THE FINAL RULE IN THE Federal Register] a valid
exemption from the vision standard in Sec. 391.41(b)(10) 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 Sec. 391.44(d)(1) to have a road test.
(5) 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 is medically certified on [DATE 60 DAYS
AFTER THE DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal
Register] 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 Sec. 391.44(d)(1) to
have a road test.
0
6. Amend Sec. 391.45 by:
0
a. Redesignating existing paragraphs (f) and (g) as paragraphs (g) and
(h), respectively;
0
b. Adding a new paragraph (f); and
0
c. Revising paragraph (b).
The addition and revision 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 cannot satisfy either the distant visual acuity
or field of vision standard, or both, in Sec. 391.41(b)(10)(i) in one
eye and who has obtained a medical examiner's certificate under the
standards in Sec. 391.44, if such driver's most recent
[[Page 2372]]
medical examination and certification as qualified to drive did not
occur during the preceding 12 months;
* * * * *
0
7. Amend Sec. 391.51 by revising paragraph (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 the section title and paragraph (b)
introductory text, and adding paragraph (b)(4) to read as follows.
Sec. 391.64 Grandfathering for certain drivers who participated in
the vision waiver study program.
* * * * *
(b) Until [DATE 60 DAYS AND 1 YEAR AFTER THE DATE OF PUBLICATION OF
THE FINAL RULE IN THE Federal Register], 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 [DATE 60 DAYS AND 1 YEAR AFTER THE DATE OF PUBLICATION OF
THE FINAL RULE IN THE Federal Register], the provisions of paragraph
(b) of this section are removed, and any medical examiner's certificate
issued under Sec. 391.43 of this part on the basis that the driver is
qualified by operation of the provisions of 49 CFR 391.64(b), related
to drivers with visual impairment in one eye, is void.
Appendix A to Part 391--Medical Advisory Criteria [Amended]
0
9. Remove and reserve paragraph II. J., Vision: Sec. 391.41(b)(10), of
Appendix A to Part 391.
Issued under the authority of delegation in 49 CFR 1.87.
James W. Deck,
Deputy Administrator.
[FR Doc. 2020-28848 Filed 1-11-21; 8:45 am]
BILLING CODE 4910-EX-P