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7**50 First Street, N.E., Suite 901**

**Washington, D.C. 20002**

June 11, 2008

## RE: Dockets FMCSA-1999-5578; 1999-6156; 1999-6480; 2001-10578; 2001-11426;

## 2005-22727; 2005-23099; 2005-23238; 2006-23773; and 2006-24015.

U.S. Department of Transportation

Dockets Management Facility

West Building Ground Floor

# Room W12-140

1200 New Jersey Avenue, S.E.

Washington, DC 20590

**Qualification of Drivers; Exemption Applications; Vision**

**73 FR 27014, May 12, 2008**

Advocates for Highway and Auto Safety (Advocates) files these comments
regarding the Federal Motor Carrier Safety Administration=s (FMCSA)
notice announcing the agency=s decision to grant twenty-four (24)
applicants an additional two-year exemption from the federal vision
requirement, 49 Code of Federal Regulations 391.41(b)(10).

The statute governing exemptions from the Federal Motor Carrier Safety
Regulations (FMCSR) requires that, for each and every application for
exemption, the Secretary Ashall give the public the opportunity to
inspect the safety analysis and any other relevant information known to
the Secretary and to comment on the request.@ 49 U.S.C. \' 31315(b)(4).
The statute requires the Secretary to disclose relevant information to
the public for its review in order to provide comment regarding the
application. In the case of exemption applications from drivers who have
already received a previous two-year exemption, the FMCSA has dispensed
with the formality of informing the public with regard to specific
Arelevant information@ of each applicant, including the need to disclose
any information about the applicant's driving record during the prior
two-year exemption. This is a substantive breach of the public
disclosure requirements of the statute.

FMCSA has decided that updated factual information regarding the driving
record of applicants who have previously been granted one or more
two-year exemptions does not have to be disclosed to the public before
granting another exemption request. The instant notice, and other
similar notices termed Arenewals@ by the agency, do not provide
individualized information regarding the driving history of each
applicant during the two-year exemption period that immediately preceded
the application for a second two-year exemption. This is precisely the
type of information that the agency relies on and discloses prior to
granting the initial exemption to each applicant. The summary
information regarding applications for a subsequent two-year exemption
is not individualized and is presented in conclusory terms and in a
manner which does

not afford the public any Aopportunity to inspect the safety analysis
and any other relevant information known to the Secretary.@ *Id.* The
agency notice provides only a cursory statement that each of the
applicants has provided sufficient information to qualify for another
exemption, but does not disclose the underlying facts and basic
information it relies on to come to that conclusion. No factual
recitation is provided regarding the driving experience, crash and
citation record of each applicant during the prior two-year exemption
period B records that are directly relevant to the application for an
additional two-year exemption. Although the agency makes specific
reference to the fact that each applicants= vision impairment remains
stable, the agency summarily concludes that Aa review of each record of
safety while driving with their respective deficiencies over the past
two years indicates each applicant continues to meet the vision
exemption standards.@[^1] 73 FR 27014, 27015 (May 12, 2008).[^2] The
agency does not disclose the pertinent driving record information or its
analysis to the public, nor does it place these materials in the docket.
Even if this information does not disqualify a driver from consideration
of an additional two-year exemption based on the screening criteria, the
agency is required to provide the public with the specific information
on which its safety determination is based. Using undisclosed
information, however, FMCSA unilaterally concludes that each applicant
should be granted another two-year exemption. *Id.* As a result, the
public cannot form its own views, raise specific factual questions or
provide fact-specific informed comment.

Advocates has repeatedly raised the contention that FMCSA, in violation
of its statutory responsibility and regulatory practice for granting
exemptions, has failed to disclose material information regarding the
specific driving records of individual applicants during their first
two-year exemption. Although the agency has repeatedly claimed that it
addressed this specific contention, i*d.,* *citing* 66 FR 17994 (April
4, 2001), the agency did not, in fact, explain its failure

to disclose relevant factual information. Rather, the April 4, 2001
notice merely defends the basis for the agency's summary procedures in
making the exemption determination. In that notice the agency claimed
that its evaluation of the two-year driving record of each applicant,
coupled with previously known information derived from the prior
application process, indicates that each applicant continues to meet the
agency=s criteria for the granting of an exemption to the vision
standard. 66 FR 17994. The agency does not explain, however, either in
that or in any other published notice, why the it does not set forth the
specific driving record of each applicant during the previous two-year
exemption. In the public notice announcing each applicant's initial
exemption request, the agency insists that each applicant have three
years driving experience immediately prior to the date of the
application, and obtains self-reported information regarding the
applicant's driving experience, and examines the applicant's official
state driving record for the three year period immediately preceding the
application. That information is published in the agency notice for the
initial exemption request which sets out for each applicant,
individually, their driving record and whether the applicant has had any
recent accidents or violations and the nature of the offense, if any.
The agency requests public comment on the factual information provided
for review. The notices for subsequent exemption applications, however,
provide no facts or specific information about the applicant's
experience during their initial two-year exemption, but routinely state
only that "over the past two years \[\] each applicant continues to meet
the vision exemption standards.@ 73 FR 27015; *and see* citations
contained in note 2 sup*ra*. This is a general conclusion that provides
no specific detailed information and, in an undifferentiated manner,
dispenses with any factual recitation of driving record violations as
well as other portions of the factual record and agency exemption
criteria.

The FMCSA also refers to additional exemption applications as
Arenewals,@ and apparently believes that it is free to dispense with
prior public notice as well as the need to provide Arelevant
information@ since the same applicant was previously granted an
exemption. However, the statutory scheme recognizes no exception in the
required procedures for subsequent exemptions by an applicant who has
previously been granted an exemption, and the statute makes no provision
for truncating public notice and information disclosure in the case of
the Arenewal@ of an exemption. Indeed, the term Arenewal@ does not
appear in the text of the statute. The agency must, therefore, treat
each application for exemption as a separate request for a determination
and order which, in fact, they are. Each such application must be
accorded separate review, prior public notice, and all safety analysis
and Aother relevant information@ must be disclosed to the public. While
the agency can reference relevant factual information in conjunction
with a previous exemption request, by so doing the agency is not
relieved of the burden to disclose specific Arelevant information@ that
has occurred during the course of the prior two-year exemption.
Unfortunately, the agency has chosen to truncate its exemption
procedures in the case of Arenewals,@ and not only does the agency fail
to disclose specific factual information except in conclusory terms, the
agency has decided to short-circuit public notice and comment procedures
as well.

Advocates objects to the issuance of the FMCSA final decision as a *fait
accompli* without providing prior notice and opportunity for public
comment as required by 49 U.S.C. \' 31315. The agency has summarily
granted the exemptions, making them effective as of May 25, 2008, 73 FR

27014, without prior notice and an opportunity for public comment before
the agency rendered its determination on the exemptions.[^3] As has
already been stated, applications for a subsequent two-year exemption
are subject to the same notice and comment process as required for the
initial determination to grant the first such exemption. In this and
other instances of drivers seeking a second or additional two-year
exemptions from the federal vision requirement, the agency has only
provided an opportunity for public comment after the determination to
grant the exemption has already been made and taken effect. This
practice violates both the fundamental due process requirements secured
under the Administrative Procedure Act (APA), 5 U.S.C. \' 553 *et seq.,*
as well as the explicit wording and procedures required by 49 U.S.C. \'
31315.

The FMCSA has asserted that the statute is Asatisfied by initially
granting the renewal and then requesting and evaluating, if needed,
subsequently submitted comments by interested parties.@ 66 FR 17995.
This response ignores the agency=s statutory duty and cannot overcome
the intent of Congress. The express wording of the statute requires that
the notice be published upon receipt of a request for an exemption, and
that includes any request for a second and subsequent two-year term of
exemption (*i.e.,* a "renewal"), and that the public be afforded an
opportunity to inspect the safety analysis and other relevant
information known to the Secretary prior to making the safety
determination. No exception or special treatment is afforded subsequent
or Arenewal@ applications for exemption. This is the appropriate
construction of the statute and the agency statement that it prefers to
procede in a different manner does not explain or excuse its failure to
abide by the statutorily mandated process.

Any reliance by FMCSA on nomenclature as a basis for according different
procedural due process to Arenewals@ as opposed to initial exemption
applications, is misplaced because Congress made no such distinction in
the statute. FMCSA=s reliance on the term Arenewal@ is without legal
import since the statute does not use that term nor does it define an
exemption renewal as permitting a different process from any other
application for a two-year exemption.

In addition to being a clear violation of the meaning and the purpose of
the statute, this procedure violates due process considerations and the
dictates of the APA. The agency is not at liberty to abrogate public
notice and comment due process simply because it is not convenient. The
agency propounds no legitimate argument to support its short-circuiting
of APA required procedural due process.

For these reasons Advocates' requests that the FMCSA reconsider its
process and procedures for dealing with applications for second vision
exemptions.

**ORIGINAL SIGNED**

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Henry M. Jasny

General Counsel

[^1]: Advocates is unaware of any Astandards@ for vision exemptions.
    Rather, the exemptions are exceptions to the formally adopted
    federal vision standard and are based on surrogate screening
    criteria used in lieu of a performance standard for visual
    capability that directly measures visual acuity, perception,
    field-of-view, etc., factors which form the basis of the vision
    standard, 49 C.F.R. 391.41(b)(10). A true performance standard would
    relate the applicant's visual capability to individual performance
    of the driving task in commercial motor vehicles.

[^2]: FMCSA uses identical wording in all notices. *See, e.g.,* 73 FR
    15255 (Mar. 21, 2008); 73 FR 11990 (Mar. 5, 2008); 73 FR 9159 (Feb.
    19, 2008); 73 FR 8393 (Feb. 13, 2008); 73 FR 7361 (Feb. 7, 2008); 73
    FR 6247 (Feb. 1, 2008); 73 FR 5260 (Jan. 28, 2008); 72 FR 71999, 72
    FR 71996, and 72 FR 71994 (Dec. 19, 2007); 72 FR 64274 (Nov. 15,
    2007); 72 FR 62897 (Nov. 7, 2007); 72 FR 58360 (Oct. 15, 2007); 72
    FR 54972 (Sept. 27, 2007); 72 FR 52423 (Sept. 13, 2007); 72 FR
    40363, 40361 & 40360 (July 24, 2007); 72 FR 32706 (June 13, 2007);
    72 FR 28904 (May 18, 2007); 72 FR 18727 (Apr. 13, 2007); 72 FR 12666
    (Mar. 16, 2007); 72 FR 11426 (Mar.13, 2007); 72 FR 7813 (Feb. 20,
    2007); 72 FR 7112 (Feb. 14, 2007); 72 FR 5490 (Feb. 6, 2007); 72 FR
    1054 (Jan. 9, 2007); 72 FR 185 (Jan. 3, 2007); 71 FR 66218 (Nov. 13,
    2006); 71 FR 62148 (Oct. 23, 2006); 71 FR 55821, 53490 & 50971 (Aug.
    28, 2006); 71 FR 43558 (Aug. 1, 2006); 71 FR 26602 (May 5, 2006); 71
    FR 19605 (Apr. 14, 2006); 71 FR 16411 (Mar. 31, 2006); 71 FR 6830,
    6826 & 6824 (Feb. 9, 2006); 71 FR 646 (Jan. 5, 2006); 70 FR 74103
    (Dec. 14, 2005); 70 FR 61166 (Oct. 20, 2005); 70 FR 53413 (Sept. 8,
    2005); 70 FR 42616 (July 25, 2005); 70 FR 41812 (July 20, 2005); 70
    FR 33938 (Jun. 10, 2005); 70 FR 25879 (May 16, 2005); 70 FR 16887
    (Apr.1, 2005); 70 FR 14748 (Mar. 23, 2005); 70 FR 12266 (Mar. 11,
    2005); 70 FR 7547 and 70 FR 7546 (Feb. 14, 2005); 69 FR 71099 (Dec.
    8, 2004); 69 FR 64811 (Nov. 8, 2004); 69 FR 62741 (Oct. 27, 2004);
    68 FR 69435 (Dec. 12, 2003); 68 FR 35772 (Jun. 16, 2003); 68 FR 1654
    (Jan.13, 2003); 67 FR 71611 (Dec. 2, 2002).

[^3]: ^3^ FMCSA appears to grant additional 2-year exemptions from the
    vision standard in perpetuity, with little regard for statutory
    formality or public notice and due process, to applicants previously
    granted an initial 2-year exemption.