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April 23, 2008

#### DOT Docket No. FMCSA-2008-0021

U.S. Department of Transportation

Docket Operations, M-30

West Building Ground Floor

Room W12-140

1200 New Jersey Avenue, S.E.

Washington, D.C. 20590

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

**Notice of Applications for Exemption from the Vision Standard**

####  73 Fed. Reg. 15567, March 24, 2008

**I. Introduction**

Advocates for Highway and Auto Safety (Advocates) files these comments
in response to the Federal Motor Carrier Safety Administration (FMCSA)
notice of applications for exemptions from the federal vision standard,
title 49 Code of Federal Regulations (C.F.R.) \' 391.41(b)(10). 73 Fed.
Reg. 15567 *et seq.* (Mar. 24, 2008). Advocates does not comment on the
merits of the individual applications or the specific qualifications of
the twenty-eight (28) applicants except as necessary to exemplify
problems in the quality and quantity of the information provided
regarding the applications, the agency=s presentation of the information
to the public, and the process adopted by the agency for evaluating the
petitions and for making determinations to grant or deny the exemptions.

Advocates files these comments for several purposes. We comment in order
to: clarify the consistency of the exemption application information
provided by FMCSA to the public; object to the agency=s misplaced
reliance on conclusions drawn from the now defunct Vision Waiver
Program; point out the inadequacies of the agency=s procedures; address
the agency=s misinterpretation of existing law regarding the statutory
standard governing exemption determinations; and place in the
administrative record of this proceeding the pertinent portions of a
ruling of the U.S. Supreme Court that directly bear on the legal
validity of vision exemptions and the agency=s exemption policy.

**II. The Federal Motor Carrier Safety Improvement Act of 1999**

Over the past ten years, an average of more than 5,000 people have been
killed annually in commercial motor vehicle (CMV, or truck and bus)
related crashes. Despite data indicating a slight downturn in total
deaths in recent years, and despite marginal drops in fatality rate, the
absolute number of people killed in CMV-related crashes has remained
relatively steady for the last decade. The total of truck crash-related
deaths increased in 2003 over 2002, and again in 2004 compared to 2003
(based on data projections from the National Highway Traffic Safety
Administration). In addition, many tens of thousands of motor carriers
have not been given any safety rating by the FMCSA and timely
communication of information about operator violation and conviction
records is still inadequate. A number of crashes involving motor coaches
in recent years, as well as the issuance of the final rule revising the
driver hours-of-service regulations -- permitting substantially longer
maximum hours of driving -- and which was struck down as arbitrary and
capricious and in violation of law by a federal appellate court, have
heightened awareness regarding motor carrier and operator safety. In
addition, Congress expressed its concern for safety on our nation=s
highways and specifically determined that there is a need for new
leadership and oversight in the regulation and stewardship of commercial
motor vehicle operations. Toward that end, Congress passed the Motor
Carrier Safety Improvement Act of 1999, Pub. L. 106-159, 113 Stat. 1748
(Dec. 9, 1999) (hereinafter Safety Improvement Act or Act), creating a
new commercial vehicle safety agency, the FMCSA, within the U.S.
Department of Transportation (DOT).

The Safety Improvement Act was intended to significantly enhance the
oversight and safety of commercial motor vehicles. The Act created the
FMCSA as an agency primarily, if not singularly, devoted to commercial
motor carrier safety. The premise of the Act and the reason for
establishment of the FMCSA was that a new safety agency, with expanded
resources and funding dedicated to the safety of commercial motor
vehicle operations, could advance the safety improvements intended by
Congress, as well as achieve the DOT=s 10-year goal of reducing motor
carrier related fatalities by 50 percent by 2009, from the 1998 fatality
level.

The Safety Improvement Act changed the fundamental manner in which
federal authorities regulate motor carriers. Congress identified in the
findings section of the Act a list of major problems with the existing
federal oversight of commercial vehicles that needed to be corrected. In
order to implement these statutory findings and purposes, Congress
explicitly enshrined safety as the agency=s mission and highest
priority. The Act states that the FMCSA Ashall consider the assignment
and maintenance of safety as the highest priority, recognizing the clear
intent, encouragement, and dedication of Congress to the furtherance of
the highest degree of safety in motor carrier transportation.@ Safety
Improvement Act, Section 101(a), *codified at* 49 U.S.C. \' 113(b). Not
only is safety the agency=s highest priority, it is the paramount goal
which the agency is required to achieve in all of its actions and
functions. The statute provides a clear mandate to the FMCSA to advance
motor carrier safety as its primary mission.

As a consequence of the unequivocal wording and clear meaning of the
Safety Improvement Act, the agency must justify each of its actions
based on its measurable safety impact. In the Act, Congress set an
overarching standard for motor carrier operations B­­ the highest degree
of safety. Establishment of the FMCSA was intended to ensure that this
pre-eminent standard of safety is achieved through agency policy choices
and other actions. Thus, FMCSA is authorized to improve safety not
merely to a greater extent than existed before, but to promote the
Ahighest degree of safety in motor carrier transportation.@ *Id.* This
means that safety must be the rationale for agency plans, analyses, and
programs, and that the FMCSA must demonstrate that it is achieving the
highest possible level of safety in its decisions and actions.

**III. Motor Carrier Driver Qualifications Exemption Policy**

In light of these events and national concern about safety, Advocates
opposes the policy of granting a multitude of exemptions from the
federal motor carrier safety regulations (FMCSRs) including the driver
qualification standards. Rather than granting numerous individual
exemptions, the agency should focus on scientific research that will
establish whether current vision standards accurately measure the level
of safety required to ensure safe motor carrier operations, and on
research to develop a rational basis for conducting individualized
testing. Unfortunately, the agency has terminated rulemaking on revising
the vision standard, concluding "there is insufficient data to support
moving forward with a proposal to change the vision standard at this
time." 70 FR 51001 (Aug. 29, 2005). If the data is not sufficient to
support a permanent change in the standard, there is likewise no data on
which to base issuance of repeated exemptions for the same purpose.
Granting exemptions from the FMCSRs based on inadequate surrogate
criteria does not ensure that deviations from the motor carrier safety
standards will provide equivalent or greater levels of safety. Moreover,
piecemeal exemptions from otherwise credible and established standards
will only serve to undermine the standard itself and increase the
pressure to grant an increasing number and variety of exemptions,
including exemptions from other safety standards.[^1] Unfortunately,
FMCSA and its predecessor agencies have participated in this devaluation
of the FMCSRs by relying on partial and incomplete research studies,
including the flawed data collection from the Vision Waiver Program, as
a valid substitute for the vision safety standard, and by placing the
burden on the public to oppose granting these and other exemptions.

**IV. Driver Information Used in the Safety Determination**

**Lack of Safety Analysis**

Advocates reviewed the accompanying background information on each of
the drivers as reported by FMCSA. The factual information presented on
behalf of each applicant is sparse and no specific safety analyses are
supplied. The agency has largely responded to prior criticism that
exemption notices provided inconsistent information and often presented
subjective or selective information in a one-sided attempt to bolster
exemption applications. While recent notices have presented information
in a more organized and consistent fashion, problems remain.

Although FMCSA tacitly acknowledges that the accuracy of the information
regarding each applicant=s driving experience, including total driving
years, mileage driven, and type of vehicle driven, has not been
independently corroborated by the agency, the agency still relies on
such information. In the past, this information was stated categorically
without indicating the source, permitting the public to infer either
that the information had been gathered by the agency from independent,
objective sources, or that the agency had verified the validity of the
information relied on in making exemption determinations. Exemption
notices now make clear that the factual information is supplied by the
applicant, *i.e.*, it is self-reported information that has not been
independently verified.

While these changes have improved the fairness of the presentation in
the exemption notices, more important problems persist, including the
lack of complete information, reliance on self-reported information, and
the omission of in-depth safety analysis to accompany the agency=s
safety determinations. The information provided in the notice is a terse
statement of a few highlights on behalf of each applicant without
providing any actual safety analysis or careful scrutiny. Essentially,
the information provided to the public only reflects that each applicant
has passed the screening stage for exemption criteria and meets the
preconditions set by the agency for consideration of the exemption
application. The agency presents five items of information as to each
applicant: 1) current status of the vision in each eye; 2) the reason
one eye does not meet the vision requirement; 3) a statement from the
examiner who conducted the applicant=s most recent eye exam; 4) the
self-reported number of years and miles the applicant claims to have
driven by type of commercial vehicle; and, 5) whether the applicant has
had any crashes or violations in the three years immediately preceding
the exemption application. The FMCSA presents these bits of information
as if they constitute a safety analysis of the applicants= skill and
capability as a commercial driver. The few, limited facts and
self-reported information are, at best, raw data from which the agency
has jumped to pre-determined conclusion that granting an exemption would
be appropriate without supplying any qualitative safety analysis.

> **Self-Reported Driving Experience**

For each applicant, the FMCSA notice states the total miles the
applicant claims to have driven (either annually or over their
lifetime), the number of years the applicant reports having

driven commercial vehicles, the type(s) of vehicle driven, and the most
recent three-year driving record. The public, however, is not advised
whether the information presented is taken from the driver applications
without outside verification, or whether the FMCSA has determined these
figures are accurate by other means. In recent exemption notices the
agency has stated that it obtains the three-year driving record directly
from state authorities. However, with respect to the other information,
the agency has changed its presentation to indicate that the information
regarding years of driving experience and total miles driven has been
Areported@ by the applicants. The unstated implication is that the
information has not been verified by the agency. Since the agency does
not expressly state what information has been verified, the public is
left to reach its own conclusions. The agency evidently accepts the
self-reported information provided by the applicants as factually
correct without conducting any procedures to validate the data.

The agency never squarely addresses the issue of the reliability of such
self-reported information. Especially when so little information is
required for screening applicants, the reliance on mostly self-reported
information renders the process extremely suspect. Aside from the
three-year official state driving record, and the most recent vision
examination, all other information is self-reported. While some or all
of this information may be accurate for many applicants, without
independent validation the agency is unable to determine what portion of
each applicant=s self-reported information is accurate, inaccurate,
incomplete or fabricated. Not only is it widely understood in the
research community that self-reported data is not entirely reliable, but
FMCSA has encountered problems with the accuracy of self-reported
information in connection with a number of exemption applications
submitted as part of this program.

In two previous instances,[^2] public comment supplied facts that placed
in doubt information reported by the applicants. In each case,
information called into question the applicants= completion of the
three-year commercial driving experience, one of the criteria for
granting the exemption. The agency requires applicants to indicate
whether they have driven a commercial motor vehicle for three years
immediately preceding the date of the application. Evidently, the agency
accepts the self-reported response of the applicant at face value. This
information, apparently, is not verified by the agency but is
nevertheless relied on by the agency in making exemption determinations.
Although employment records could verify actual driving experience for
the three years immediately prior to the date of the application, the
agency does not require applicants to submit such records and, if
employment records are provided to the agency, those records are not
placed in the record for public review.[^3] Thus, the agency accepts
applicant statements in fulfillment of this criterion and only public
comment by a recent employer will cast doubt of this assumption. That is
precisely what occurred in two separate instances cited.

These situations provide clear evidence that the agency cannot rely on
self-reported information to screen applicants for exemption. There
almost certainly are other cases in which information provided by the
applicants are inaccurate or untrue. In the two cited cases, the agency
obtained more accurate information only because of the diligence of an
employer who filed a comment with the public docket in one instance, and
because of a subsequent conversation with the applicant in the other.
These incidents are a concern and, coupled with other cases in which
subsequent information has forced the agency to delay granting
applications for exemption, raise questions regarding the thoroughness
of agency review and investigation of exemption applications. FMCSA must
carefully scrutinize applications and, more importantly, independently
verify information with employers and others to ensure the accuracy of
self- reported information supplied by the applicants.

In response to criticism raised by Advocates in a prior notice, the
FMCSA has stated that only the last three years of driving experience is
required under the criteria for an exemption. See docket
FMCSA-2000-7006, 64 FR 57230, 57232 (Sept. 21, 2000). As a result, only
the fact that the applicant has driven a commercial vehicle for the
three years prior to the date of the application is actually verified by
the agency. As the recent statements of the agency discussed above make
clear, the agency does not actually verify whether an applicant has
driven during the three years prior to the application. The agency
should directly state in the public notice that such information is
self-reported and has not been verified by FMCSA. The agency must either
verify such information or eliminate reliance on self-reported
information in making safety determinations.

Likewise, the FMCSA has also stated that total miles driven is not a
critical criterion and is not verified. *Id.* at 57233. Nevertheless,
the agency states that the total A\[m\]ileage is presented as an
indication of overall experience with commercial motor vehicles.@ *Id.*
The agency is presenting self-reported information that it has not
verified in order to persuade the public that its determination to grant
an exemption is accurate, and will likely be safe, even though the
agency asserts that it does not rely on this information in making its
safety determination.

Advocates maintains that the FMCSA=s presentation of, and reliance on,
self-reported information regarding years of experience and total
mileage driven is inappropriate for two reasons. First, as the agency
readily admits, it has not verified the accuracy of the information it
accepts as factual and presents to the public. Without independent
verification of self-reported information, the agency cannot accept it
as reliable for any purpose because it is subject to mistake,
exaggeration, and falsehood. Second, although the agency presents the
self-reported career mileage driven and years of driving experience
submitted by the applicants, the agency only verifies citations and
crashes for a three-year period. Because the agency does not verify
crash and citation history prior to the three-year driving record
immediately preceding the application, there is no way to ascertain
whether the self-reported driving experience, even if correctly
reported, is an accurate indication that the applicant has a good or a
poor driving history. The self-reporting of driving experience alone,
when viewed in a vacuum, will always convey a generally good impression
since there is no accurate reporting of negative experience, *i.e.,*
crashes and citations, for the same period of time and mileage.[^4] As
an example, a report of ten years and one million miles of driving
experience, standing alone, conveys an impression that the applicant has
extensive, positive driving experience. That impression could be altered
dramatically, however, if the applicant had been involved in a number of
crashes and received numerous citations during the first seven years of
that experience -- seven years of driver history that does not appear on
the three-year state driving record reviewed by the FMCSA. Thus, the
FMCSA=s reliance and presentation of such one-sided, self-reported
information Ato give an overall indication of experience,@ *id.*, is
entirely inappropriate and prejudicial in making safety determinations
because it may provide an incomplete picture of the applicant=s driving
history, and because it is irrelevant since, according to the agency's
own reasoning, only the most recent three year driving record Ais the
critical focus relative to safe driving.@ *Id.*

Advocates continues to maintain that the juxtaposition of presenting
large total number of years of self-reported driving experience
(*e.g.,*10, 20, and 30 years), as well as a large total number of
self-reported miles driven, alongside only the three-year verified
driving history creates the misleading impression that applicants with
long driving careers also have long safe driving histories when, in
fact, this may not be the case in some instances. The clear and possibly
misleading implication to be drawn from this presentation is that each
applicant had a safe driving record with no crashes (or Aat fault@
accidents), citations, or convictions prior to the last three years. The
FMCSA has denied any intention of trying to convey such an
interpretation. *Id.* However, the repeated presentation of the driving
history information in this manner, regardless of the agency=s intent,
leaves the impression that each applicant has a record of experience
prior to the last three years that is unblemished by collisions or
citations since those negative aspects are not reported. An impression
the agency readily accepts as an indication of overall experience with
commercial motor vehicles. The agency has made no statement nor taken
any action to deter the public from drawing such an unfounded
conclusion.

The agency cannot have it both ways. Either the prior driving history is
part of the safety determination since it presents an indication of the
applicant=s overall experience, in which case the agency must
independently verify the self-reported information and provide
comparable accident and citation histories to provide a fair and
accurate summary of the experience, or the driving experience prior to
the last three years is irrelevant and should not be considered by the
agency in its decision making process for any purpose and should also
not be presented to the public in agency notices.

Moreover, recent experience with state submission of documented
accidents and citations that pre-date the three year driving record
raise serious concerns about the factual record on which the FMCSA
relies in making its determinations to grant vision exemptions. First,
the FMCSA should avail itself of state collected driving information
including state records older than three-years. So long as driving
records are verified as accurate by the state they are relevant and
material to the safety determination. In reviewing exemption petitions,
the agency should avail itself of all information that is germane to the
driving record and safety of the applicants. The FMCSA should request
driving histories over extended time intervals from states that retain
driving records for more than three years, even if that requires states
to search additional databases and archived files. At the very least,
this would afford both the agency and the public a more complete and
realistic basis for evaluating the information that the agency has
stated

provides an overall indication of experience.[^5] Second, the agency
should not publish as fact self-reported information about driving
records without authenticating accident and citation information. The
agency should consider reporting only driving experience and mileage
history for which the agency has obtained a state driving record or has
in fact verified the driving history of the applicant. Advocates
believes that the FMCSA should make every effort to assure the public
that exemptions are only granted to those drivers with a verified safe
driving history of at least five to ten years, not just the most recent
three-year period.[^6]

The self-reported figure of the total miles driven by each applicant is
either stated as a single total for the applicant=s entire driving
career, or as an annual figure which is intended to be multiplied by the
number of years of self-reported driving experience claimed by the
applicant. As a result, the FMCSA provides no reliable driving (mileage)
exposure data for the last three years covered by the official driving
record of each applicant. (Unless it is claimed that the applicants
actually drove an equal number of miles each and every year). The agency
dismissed the need for annual exposure data in stating that whether an
applicant accumulated accidents and citations under low or high mileage
exposure during the critical three year period is Anot relevant to the
determination of the driver=s acceptability.@ 65 FR 57233. Advocates
disagrees.

FMCSA has adopted a strict number of Aat-fault@ crashes or citations
that must appear on the applicant=s record in the last three years as
its bright line for the safety determination. Advocates believes that,
based on information published in the record, the agency should consider
a sliding scale standard for drivers with comparatively little driving
experience. Advocates has observed that while many applicants
self-report extensive experience, a number of applicants report only
three or four years driving experience with a limited number of miles
driven. For applicants reporting relatively low accumulations of mileage
and years of driving experience, but who nevertheless have accidents or
citations on their record, exposure should be a factor in making the
safety determination.[^7] Applicants with less accumulated experience
should not be accorded the same degree of driving competence as
applicants with longer experience. We base this view on two factors.
First, exposure, rather than a predetermined number of accidents or
citations, is frequently used as an appropriate means of determining
safety. In this regard we point out that in other contexts the FMCSA
often relies on the fatality rate, rather than on the total number of
annual fatalities, as an accurate measure of safety progress in
truck-related crashes. Second, the agency has consistently stated that
drivers with substandard vision in one eye can adjust over a period of
time and, presumably, driving experience. Thus, the agency continually
relates the age at which an applicant=s impairment occurred implying
that the earlier in life it occurred the more time the applicant has had
to adjust. It is thus reasonable to expect that applicants with limited
time and travel exposure may not be qualified for exemption and should
be disqualified at a lower level of accidents or citations. However, in
making the safety determination for an exemption, the agency fails to
take into account either the driving experience (in terms of years of
driving and distance driven in commercial vehicles) or the short time
period available for adjustment of vision during driving for applicants
who incurred an eye impairment within a few years of submitting their
exemption request. FMCSA provides no objective analysis or scientific
research regarding the minimum time or driving experience that is
necessary to ensure that a commercial driver has adapted to driving with
poor binocular vision or, indeed, with only monocular vision. In light
of these considerations, the agency should set a minimum mileage limit
in commercial vehicles, as well as a minimum time limit from the date of
the onset of the vision impairment, below which an applicant cannot
obtain an exemption, and a descending scale based on exposure for
accident and citation accumulation.[^8]

FMCSA has argued that A\[d\]efining a required minimum mileage for
application would enact a spurious screening standard.@ 65 FR 57233.
Nevertheless, the agency clearly believes that the number of miles
driven has value as a measure of safety. AIt is part of the basis for
establishing whether a program has achieved \>a level of safety that is
equivalent to, or greater than, the level of safety that would have been
achieved= absent the exemption.@ *Id.* This, however, is precisely the
determination the agency is required to make for each exemption
application. Thus, it is no small coincidence that the agency publishes
the self-reported total mileage for all applicants and considers total
mileage to Agive an overall indication of experience.@ *Id.* For this
very reason, the agency should require applicants to meet a minimum
total or average annual mileage, at least for the prior three years, as
one of the qualifying criterion for an exemption, just as it requires a
minimum of three years driving experience. In this regard, the
self-reported mileage driven by applicants in the present notice varies
greatly, from as little as 32,300 total miles over 9.5 years of driving
experience for applicant #11 (73 FR 15568), to a total exceeding 4.5
million miles of driving reported by applicant #3 (*id.* at 15567).
Despite meeting the requirements for exemption, a number of applicants
reported total career miles driven that, given the reported years of
driving experience, yield relatively low annual averages of miles
driven. By contrast, other applicants have reported over a million total
miles of driving indicating, when divided by their reported years of
driving, much higher comparative average total annual mileage. The
relative exposure of these drivers, even if actual driving conditions
were similar, is quite distinct.[^9]

### Other Conditions Affecting Safety

Advocates has also argued that the FMCSA has made no effort to
scrutinize the conditions under which the applicants have obtained their
self-reported driving experience. There is no analysis of the percentage
of total miles driven daytime versus nighttime, intrastate versus
interstate, or long haul versus short haul. Further, the FMCSA has not
made any attempt to identify differences in the driving experience of
the applicants based on the type of driving routine and vehicles driven.
In response, the FMCSA dismisses the conditions under which applicants
obtained their driving experience as irrelevant.[^10] Nevertheless, the
agency now provides a break down of applicant driving history by certain
types of vehicles -- straight truck, combination, and bus -- where such
self-reported information is available, it has not attempted any
analysis of whether one type of experience has greater predictive value
for safety than another.[^11] The agency simply dismisses the need for
further analysis by stating that it Ahas not assessed the relative value
in terms of driving experience between driving these \[\] types of
vehicle configurations.@ 65 FR 57233.[^12] This, and other failures to
provide safety analyses based on specific driving experience and
conditions, indicates that the exemption process is not based on a
credible, scientific evaluation of individual driving experience but is
instead a broad-brush uncritical enterprise aimed at awarding as many
exemptions as possible.

Moreover, FMCSA fails to engage in any analysis or comparison of
intrastate and interstate operating conditions. Presumably, the
applicants have obtained all of their self-reported driving experience
and mileage while operating intrastate as a result of their visual
impairment. Since the applicants have no experience in interstate
commercial operations, the agency must address how the change in
operating conditions and environment will affect the safety of drivers
who will be allowed to engage in long-haul, overnight interstate
movements and operations should the exemption be granted. The agency
presents no such safety analysis.

FMCSA also continues to emphasize that most exemption applicants do not
have an accident or citation on their driving record (however, only in a
commercial vehicle, not in their personal vehicles) in the prior three
years. In this notice the agency reports that one (1) applicant has been
involved in a reported crash, and that three (3) applicants have a
conviction for a citation within the last three years. In past notices,
the agency has made representations that characterize the facts relating
to applicant crashes and violations in an effort to downplay the
seriousness of the incident. This agency practice often presents factual
information based on police reports of crashes involving the applicants
within the past 3 years that have not been placed in the docket or made
available for public inspection and review. In many instances the agency
characterizes the factual information and presents explanations of the
collisions involving the applicants, invariably asserting that in each
case the applicants' vehicle was struck by the other vehicle involved
and that the applicant was not cited in the incident or was at least not
considered "at fault" in the collision. That effort is not repeated in
this notice.

It is not clear whether this reflects a new policy by FMCSA not to
characterize the underlying facts of a prior crash involving the
applicants, or whether the agency had no exculpatory information to
present in the four incidents mentioned in this notice. The agency's
previous approach, however, left the distinct impression that the agency
provides no facts or detailed information in cases where the applicant
may appear to have been at fault, but does provide details favorable to
the applicant when such information is available. Such belated review,
characterization, and interpretation of the causal reasons for a
collision or a traffic violation are unreliable, often depending on
self-reported information from the applicant.[^13] This is an inherently
biased practice that presents a one-sided, filtered interpretation of
the facts, an advocacy practice that the agency appears to have
discontinued.

Unless the agency places the legal documents pertinent to each situation
in the docket for public review and comment, it should refrain from
engaging in the unilateral defense of an applicants involved in crashes
based on factual information that is not part of the public record. It
is inappropriate and prejudicial for FMCSA to proffer the applicant=s
version of events, or to provide selective information from documents
not in the public record of the agency regulatory proceeding, in an
effort to support the application and bolster the basis for the agency=s
safety determination. Moreover, regardless of legal "fault," without
careful accident investigation the agency is not able to determine what
role the applicant's visual impairment may have played as part of the
circumstances leading up to the crash, a more subtle yet nevertheless
critical aspect for truly determining the factors involved in crash
causation.

Advocates also notes that seven (7) of the applicants described in this
notice do not hold a currently valid commercial drivers' license (CDL)
from their home state. In each case, the applicant holds a state issued
drivers' or other non-CDL license that may permit the operation of
medium and some heavy vehicles but is not equivalent to a CDL as
required by federal law and regulation for interstate operation. FMCSA
does not discuss the safety implications of granting exemptions to
persons who do not meet the vision standard and who do not have a valid
CDL.

**Vision Compensation**

The FMCSA has asserted that over time, and with experience, drivers
"adapt" to their visual deficiencies. The agency has not specified any
precise amount of time, conditions, or factors that are involved in such
adaptation, but techniques such as head nodding have been mentioned as
behaviors that allow drivers to compensate for the loss of visual
acuity, binocular vision, depth of field, and full peripheral vision.
Such behavior modification is dependent on unspecified changes in driver
behavior over an unknown period of time that will vary from individual
to individual. The agency has provided no data or analysis of this
process. The agency has made it clear that it is not concerned about the
visual capacity of applicants who were either born with a vision
deficiency or have had the deficiency since childhood . *See, e.g.,* 68
FR 19596. However, even assuming that over long time intervals that
sufficient adaptation occurs to permit the safe driving of commercial
vehicles, the agency cites no minimum time period from the loss of
visual capacity, nor any minimum time period of driving experience, that
would ensure such adaptation. In past notices, Advocates has pointed out
that some applicants had incurred their impairment or loss of vision
only recently, or within a few years of the application for vision
exemption. This notice indicates that at least five (5) applicants, #3,
#6, #16, #18 and #25 have sustained their vision deficiency within the
past 10. The agency has never defined or explained what criterion it
applies to determine whether and how a particular individual applicant
has regained sufficient visual acuity in order to overcome the physical
impairment to the applicant's vision. In the brief recitation of the
safety record for each applicant, the agency does not discuss whether
each of these individuals, or the other applicants, have fully adapted
to their visual deficiency, or whether they are actually tested or
examined for this capability. Since these are comparatively recent
events, the agency is obligated to address the issue of whether and how
the applicants have actually compensated for their loss of visual
acuity. Data on driving experience since the onset of the visual
impairment, even self-reported information, has not been provided in the
record. In the past, the agency has concluded that applicants with an
acceptable number of at-fault accidents or violations in the previous
three years "demonstrat\[e\] the likelihood that they have adapted their
driving skills to accommodate their condition," 68 FR 19597. This
conclusion is not supported by any safety analysis or research.

**Statements of Ophthalmologists and Optometrists**

Advocates continues to advance its objection with regard to the FMCSA=s
reliance on personal statements from ophthalmologists or optometrists as
to the applicant=s ability to safely operate a commercial motor vehicle.
While these specialists may be able to provide information regarding
visual capabilities and pathology of the applicant, they are not experts
on the driving task and are probably unfamiliar with the requirements
for safe operation of commercial motor vehicles. They also are not the
health care providers charged with overall commercial driver medical
certification. This is particularly true in light of the fact that the
vision standard requires better vision than any of the applicants
possess and better vision than required by most states for passenger
vehicle operation licensure. Moreover, none of these statements
indicates that the ophthalmologists or optometrists quoted in the
applicant information are familiar with the basis for the current
federal vision standard, the types of vehicles that are driven by the
applicants, the conditions under which their patients actually operate a
commercial vehicle including annual driving mileage, amount of time
spent loading vehicles and waiting for loads, amount of nighttime
driving performed, weather conditions, over-the-road sleeping conditions
(sleeper berths, motels), etc.[^14] These conditions are addressed in
the statements provided for the record.

Further, the ophthalmologists or optometrists conducting the exams often
have no prior familiarity with the patient. While such professionals can
attest to a patient=s level of visual acuity, they cannot be relied on
for the proposition that the applicant has sufficient vision to perform
the task of operating a commercial motor vehicle. These professionals
have no experience and professional training in commercial vehicle
operations on which to properly base a conclusion regarding the
applicant=s driving ability. Beyond stating that the applicants they
have examined possess a certain level of vision in one or both eyes, and
have the requisite medical certificate, the statements of the
applicant=s qualifications to safely drive a CMV are immaterial. This is
a further example that not only do vision examiners often include
extraneous and irrelevant statements in their exam report, but that they
may also base their own conclusions of vision capability of the driver
on subjective information other than the actual eye examination.[^15]
The agency, however, uses the statements of the ophthalmologists and
optometrists not just to establish the degree of the applicant=s visual
acuity, but as testimonials to support the overall inference that the
applicant is a safe driver. While the doctors are experts on vision,
they are not experts on driving ability and motor carrier operations,
and so their opinions on those issues are not persuasive, should not be
relied on by the agency, and should not be quoted and recited as fact in
the agency=s public notice.

**V. Misplaced Reliance on the Vision Waiver Program**

The FMCSA=s Notice of Petitions and Intent to Grant Applications for
Exemption, in concluding that the applicants= petitions for exemptions
should be granted, relies in part on the results obtained from the
ill-conceived and illegally promulgated vision waiver program. In past
notices the agency has repeatedly asserted that A\[t\]he \[\] applicants
have qualifications similar to those possessed by the drivers in the
waiver program.@ 65 FR 45824. The agency has also asserted that A\[w\]e
believe that we can properly apply the principle to monocular drivers
because the data from the vision waiver program clearly demonstrate the
driving performance of monocular drivers in the program is better than
that of all CMV drivers collectively.@ *Id.*

Advocates rejects this use of information collected from the now-defunct
vision waiver program. We also disagree with the agency=s oft-stated
conclusion A*that other monocular drivers, with qualifications similar
to those required by the waiver program, can also adapt to their vision
deficiency and operate safely*.@ *Id.* (emphasis added). No such
conclusion is tenable since the vision waiver program did not use a
valid research model nor did it produce results that could legitimately
be applied to drivers other than participants in the original vision
waiver program.

Indeed, FMCSA was strongly criticized by a number of independent
researchers and research organizations for ignoring basic principles of
scientific methodology in its conduct of the vision waiver program. In
the wake of the federal court decision that invalidated the vision
waiver program, *Advocates for Highway and Auto Safety v. Federal
Highway Administration*, 28 F. 3d 1288 (D.C. Cir. 1994), the agency
admitted the inadequacy of the study methodology and design. AThe FHWA
\[now FMCSA\] recognizes that there were weaknesses in the waiver study
design and believes that the waiver study has not produced, by itself,
sufficient evidence upon which to develop new vision and diabetes
standards.@ 61 Fed. Reg. 13338, 13340 (Mar. 26, 1996).[^16] The agency
cannot have it both ways B it cannot claim an invalidated and incomplete
waiver program as a source for scientifically credible principles for
application to the current exemption process.

Most importantly, it is potentially improper and anomalous for the
agency to attempt to apply facile generalizations about monocular driver
capabilities to a case-by-case evaluation of each exemption applicant.
This attempt contradicts the basic premise of the exemption evaluation
and of reviewing each applicant=s case virtually *sui generis* and on
the unique merits of the facts and circumstances which may qualify or
disqualify any given applicant. In fact, the information collected in
the vision waiver program is worthless as scientific data, and
conclusions regarding the safety of any other individual driver or group
of drivers who did not participate in the vision waiver program are
neither credible nor scientifically valid. The agency cannot extrapolate
from the experience of drivers in the vision waiver program to other
vision impaired drivers who did not participate in that program. This
point was made repeatedly to the FHWA in comments to the numerous
dockets spawned by the agency=s determination to grant vision waivers.
It was made quite clear at the time the agency undertook to grant
waivers to drivers in the vision waiver program that the individualized
information accumulated in that program could not be used to serve any
other purpose. Information collected in that program has been
comprehensively repudiated as a basis for drawing any conclusions about
non-participant drivers. The FMCSA, therefore, is obligated to
re-evaluate the merits, and reconsider its preliminary determination to
grant exemption petitions without any reliance on, or reference to, the
experience of the drivers who participated in the vision waiver program.

Moreover, the agency asserts that drivers who do not meet the existing
vision standard requirements can Aadapt to their vision deficiency and
operate safely.@ *Id.* Yet the FMCSA provides no basis on which to
assert that drivers in the original Vision Waiver Program adapted to
their vision deficiency or how this was accomplished. More important to
the current circumstance, however, is the fact that no evidence of such
adaption is presented by or on behalf any applicant for exemption. Proof
of this adaptive practice or behavior is crucial to the agency=s
argument and safety determination, yet none is presented.

**VI. The Legal Standard for Exemptions**

**Burden of Proof**

The Secretary of Transportation must meet a very exacting legal standard
in order to grant an exemption to the FMCSRs. The statute requires the
Secretary, prior to issuing an exemption, to determine that the
exemption is \"likely to achieve a level of safety that is equivalent
to, or greater than, the level \[of safety\] that would be achieved
absent such exemption.@ 49 U.S.C. \' 31315(a).[^17] The statute not only
expressly states the standard to be achieved B equal or greater safety B
but also imposes the burden of proof that the Secretary must meet in
making safety determinations to grant exemptions.

The statute limits the authority of the Secretary to grant exemptions
only to those that are Alikely@ to result in a safety outcome that is at
least equal to the level of safety that existed before the exemption was
issued. The use of the word Alikely@ means that the result must be
probable.[^18] This is a high legal standard of proof, comparable to the
requirement that parties seeking a preliminary injunction must establish
a Alikelihood@ of success on the merits.[^19] More than a mere
preponderance of the evidence in the record must support the proposition
that granting the exemption will yield equal or greater levels of
highway safety. While the evidence need not be unanimous, an
overwhelming majority of the evidence must unequivocally support the
proposition that a particular exemption will, in all probability, result
in equal or greater safety. Thus, the Secretary does not have discretion
to issue exemptions when the evidence is unclear, evenly divided, or
fails to establish that an equal or greater safety result is probable.

Advocates' is convinced that the FMCSA has not met its burden of proof
based on the administrative record before the agency. While there is a
mix of scientific data and research and other information in the record,
the agency cannot assert that the evidence proves that ITDM exemptions
will probably result in an equivalent or greater level of highway
safety. Objective evaluation of the scientific evidence reveals that the
claims made by the agency regarding the safety of ITDM drivers is not
supported by the research and that the research findings are not nearly
as clear and unequivocal with respect to the safety result as the agency
has asserted. While there may be some evidence in the record to support
the agency view, the majority of the evidence does not support the
conclusion that granting numerous exemptions to individuals with ITDM to
drive in interstate commerce will probably result in equivalent or
greater levels of safety than would exist if the program were not
established. On this record, therefore, the evidence does not indicate
that ITDM exemptions are Alikely@ to result in equal or greater highway
safety and, therefore, a program to grant such exemptions should not be
adopted.

> **The Legal Standard For Issuance of Exemptions Is Not More Flexible
> Than the**

**Former Legal Standard that Governed the Issuance of Waivers**

As already noted, the statutory language requiring a safety result that
is equivalent to, or greater than, the previously existing level of
safety, sets an extremely high safety standard. This standard is no less
stringent than the former statutory standard that required waivers to be
consistent with safety. FMCSA has, nevertheless, asserted that the
current statutory language permitting the issuance of exemptions affords
the agency Agreater flexibility and discretion to deal with exemptions
than the previous standard.@ 66 FR 39551 (citation omitted). The present
legal standard, however, is not a lower or more flexible standard than
the previous statutory requirement that waivers must be \"consistent
with . . . the safe operation of commercial motor vehicles.\"[^20] The
express wording of the current statute requires that highway safety be
maintained at the level of safety that existed prior to the granting of
the exemption. Any attempt to gloss this standard as a less demanding or
more flexible safety standard than the preceding statutory standard is a
misinterpretation of the unambiguously clear statutory language.

Not only is the legal standard for granting exemptions not less
stringent, the opposite is actually the case. A comparison of the
wording of the two provisions reveals that the current exemption
provision actually imposes a stricter standard than was included in the
prior waiver provision. The standard for granting exemptions is more
stringent in two ways. First, the prior waiver provision language only
required a result that was Aconsistent@ with the public interest and
Athe safe operation@ of commercial motor vehicles.[^21] That language
did not necessarily require an outcome resulting in equivalent or
greater safety. The terminology of the previous waiver provision was
undefined in the statute and could have been interpreted to mean that

something less than an equivalent level of safety would have been
acceptable.[^22] It is evident that the intended result required by the
current statute, equivalent or greater safety, imposes the same if not
an even higher level of safety than the prior requirement which only
limited waivers to those that were Aconsistent@ with the safe operation
of commercial vehicles.

Second, the prior statutory provision did not establish any legal
standard of proof on which to base the safety determination to issue a
waiver. Arguably, as long as there was some minimum factual support in
the record on which to base the issuance of a waiver, and which
established a reasonable basis for agency action, the waiver could have
been issued.[^23] The Court in *Advocates* found that there was no
evidence to support the agency waiver program. Under such a standard,
the administrative record on which the proposed diabetic waiver program
rests might have been sufficient for the adoption of the program and the
issuance of ITDM exemptions. But the current statute requires enough
evidence in the record to establish that the issuance of an exemption
will Alikely@ result in equal or greater safety. As previously shown,
this demands that the record establish that the outcome of equal or
greater safety is probable, not just possible. This imposes a burden of
proof not found in the prior waiver provision. Far from reducing the
legal burden on the Secretary, or making the issuance of exemptions
under current law either more flexible or less stringent than was
applicable for the issuance of waivers, requiring that equivalent or
greater safety be the Alikely@ result actually raises the evidentiary
bar for the issuance of exemptions as compared to waivers.

Thus, not only does the wording of the statute prevent any
interpretation that the exemption requirement is more lax than the
waiver provision, but the addition of an evidentiary standard requiring
a high level of proof in the record contradicts the agency=s position
that exemptions are subject to a lesser legal or evidentiary standard
than was required for the issuance of waivers.

**The Legislative History Does Not Support the Agency=s Position**

The FMCSA has asserted, nevertheless, that the legislative history of
the exemptions provision indicates that the Secretary has greater leeway
to grant exemptions. The agency relies on selective portions of the
legislative history of the current provision, citing H.R. Conf. Rep. No.
550, 105^th^ Cong., 2d Sess., at 489 (1998). 66 FR 39551. This
contention asserts that Congress sought to overturn the Court of Appeals
decision in *Advocates,* which the agency has argued limited the ability
of the Secretary to issue waivers. *See* agency discussion in FMCSR
Technical Amendments Final Rule, 65 FR 25285, 25286, May 1, 2000
(FMCSA); FMCSR, Waivers, Exemptions, and Pilot Programs, Rules and
Procedures, Interim Final Ruel,63 FR 67600, 67601, Dec. 8, 1998 (FHWA).
According to this history in order \"\[t\]o deal with the \[Court\'s\]
decision, this section substitutes the term \'equivalent\' to describe a
reasonable expectation that safety will not be compromised.\" H.R. Conf.
Rep. No. 550, at 489-90.[^24] The

agency cannot, however, rely on this statement to support its position
of a lower legal standard for exemptions for two reasons.

First, any reading of this legislative history to indicate a weakening
of the legal burden and an attempt to override the Court of Appeals
decision in *Advocates* must be squared with the express wording and
meaning of the statutory language as enacted. The exemption statute
expressly states that the Secretary may grant exemptions if they are
Alikely@ to result in equivalent or greater safety; there is no
implication that less safety or safety flexibility is intended. The term
\'equivalent\' means \"equal, as in value, force, or meaning\"[^25] and
is \"corresponding or virtually identical esp. in effect or
function.@[^26] Nothing whatever in the use of the word \'equivalent\'
as a substitute for the expression \'consistent with,\' used in the
prior statutory provision, connotes or implies any increased
flexibility, diminution, or other abridgement of the enacted safety
standard for granting and administering exemptions. Moreover, even
according to the cited legislative history, the term \'equivalent\' was
selected by Congress not to undermine safety or to relax a strict
interpretation of the prior legal standard. The legislative history
actually supports the view that Congress intended exactly the contrary
purpose, [viz.]{.underline}, to provide \"a reasonable expectation that
*safety will not be compromised*.\" *Id.* (Emphasis supplied).

Second, the cited legislative history is actually taken from the Senate
amendment to the original House bill. The statement referring to the
decision in *Advocates* was not restated or reiterated in the Conference
Report substitute that supplanted the Senate version. *Id.* It is the
Conference Report substitute, not the prior Senate amendment gloss that
was replaced by the Conference Report language, that represents the
controlling legislative history accompanying the law. Indeed, the
Conference Report substitute, while stating that it includes basic
provisions of both the House and Senate versions, makes no mention of
the cited court case nor does it intimate that any increased discretion
provided to the Secretary for granting exemptions.[^27] The views
expressed in the Senate report are not explicitly adopted or restated in
the Conference substitute. As a result, there is little value in the
Senate Report statements regarding the decision in *Advocates.* Even so,
and as discussed above, statements in legislative history are
fundamentally worthless to the extent that they openly conflict with the
clear intent of Congress expressly stated in the statute. In this
instance, the strained interpretation relied upon by FMCSA is directly
countermanded by the express wording of the statute.

**VII. Supreme Court Decision on Vision Waivers**

In *Albertsons, Inc. v. Kirkingburg,* No. 98-591 (June 23, 1999), the
U.S. Supreme Court specifically rejected vision waivers[^28] as a
regulatory modification of the vision standard in the Federal Motor
Carrier Safety Regulations (FMCSRs). A\[W\]e think it was error to read
the regulations establishing the waiver program as modifying the content
of the basic visual acuity standard. . . .@ *Albertsons, slip op.* at
15. The Court refuted the view that Athe regulatory provisions for the
waiver program had to be treated as being on par with the basic visual
acuity regulation, as if the general rule \[vision standard\] had been
modified by some different safety standard made applicable by grant of a
waiver.@ *Id.* The Court reached this opinion based on the FHWA=s own
assertion that it had no facts on which to base a revised visual acuity
standard either before *or after* the vision waiver program. AThe FHWA
in fact made it clear that it had no evidentiary basis for concluding
that the pre-existing standards could be lowered consistently with
public safety.@ *Id.* at 19. According to the Court, Athere was not only
no change in the unconditional acuity standards, but no indication even
that the FHWA then had a basis in fact to believe anything more lenient
would be consistent with public safety as a general matter.@ *Id.*

In making these statements and reaching its conclusion, the Supreme
Court relied heavily on the administrative record compiled and the
decision of the Court of Appeals rendered in *Advocates for Highway
Safety v. FHWA,* 28 F.3d 1288 (CADC 1994). The Supreme Court summed up
the agency=s basis for the Vision Waiver Program as follows:

\[T\]he regulatory record made it plain that the waiver regulation did
not rest on any

final, factual conclusion that the waiver scheme would be conducive to
public

safety in the manner of the general acuity standards and did not purport
to modify

the substantive content of the general acuity regulation in any way. The
waiver

program *was simply an experiment with safety,* however well intended,
resting on

a hypothesis whose confirmation or refutation in practice would provide
a factual

basis for reconsidering the existing standards.

*Albertsons, slip op.* at 20 (emphasis added) (citation omitted).

Indeed, although the *Advocates* case was not before it, the Supreme
Court went out of its way to endorse the decision reached by the Court
of Appeals, noting that is was Ahardly surprising that . . . the waiver
regulations were struck down for failure of the FHWA to support its
formulaic finding of consistency with public safety. See *Advocates for
Highway Safety v. FHWA,* 28 F.3d 1288, 1289 (CADC 1994).@ *Id.,* at note
21. The Court went on to emphasize that the agency has tried to have
things both ways.

> \[The agency\] has said publicly, based on reviews of the data
> collected from the

waiver program itself, that the drivers who obtained such waivers have
performed

> better as a class than those who satisfied the regulation. \[Citations
> omitted\]. It has
>
> also noted that its medical panel has recommended \>leaving the visual
> acuity
>
> standard unchanged,=see 64 Fed. Reg. 16518 (1999) \[citations
> omitted\], a recommendation which the FHWA has concluded supports its
> \>view that

the present standard is reasonable and necessary as a general standard
to

ensure highway safety.= 64 Fed. Reg. 16518 (1999).

*Id.*

The Supreme Court concluded that employers do not have the burden of
defending their reliance on existing safety standards in the FMCSRs in
the face of FHWA waivers. According to the Court, were it otherwise,

\[t\]he employer would be required in effect to justify *de novo* an
existing and

otherwise applicable safety regulation issued by the Government itself.
The

employer would be required on a case-by-case basis to reinvent the
Government=s

own wheel when the Government merely had begun an experiment to provide
data

to consider changing the underlying specifications.

*Id.* at 22.

It is clear from the Supreme Court=s opinion that whatever validity the
Vision Waiver Program may have had (and Advocates does not concede that
it ever had any scientific validity), was based on the premise of
collecting empirical data in order to revise the visual acuity standard.
This was the announced purpose of the program and the basis for data
collection methodology. The Vision Waiver Program was not conceived or
designed to serve any other legitimate scientific purpose. Since the
program was subsequently discontinued by court order, and since the
agency has acknowledged that the data collected is not sufficient to
revise the existing standard, there is no appropriate use to which the
data can properly be applied, including as a basis for justifying the
grant of vision exemptions. Advocates does not accept, and neither FHWA
nor OMCS has proven, that data collected about drivers who voluntarily
participated in the Vision Waiver Program can be used as the basis for
granting exemptions (waivers) to drivers who did not participate in that
program. There is no credible basis for making such an extrapolation,
particularly when the FMCSA claims it is making individual assessments
of each applicant. The Supreme Court=s discussion in *Albertsons*
supports Advocates= view that the agency cannot fairly and credibly rely
on data collected in the discredited Vision Waiver Program. The Supreme
Court was eloquent in its conclusion that vision waivers are not a
credible substitute for the underlying standard. Since the data
collected in the program cannot be used for its intended purpose to
revising the vision standard, it cannot and must not be used for any
other legal, regulatory, or policy purpose, including the justification
for issuing exemptions from the vision standard.

In previous notices regarding the Vision Waiver Program and vision
exemptions, FHWA persistently invoked the Americans with Disabilities
Act (ADA) as the rationale for the Vision Waiver Program and the
subsequent issuance of vision waivers, now referred to as exemptions.
During the Vision Waiver Program litigation in federal court, and even
after the Court of Appeals nullified that program, the FHWA steadfastly
maintained that the issuance of vision waivers was required in order to
comply with the ADA. Advocates has long contended that the ADA does not
override existing safety standards contained in the FMCSRs, and that the
issuance of waivers is not a viable means of addressing requirements in
the vision standard and other medical and physical qualifications for
commercial drivers that are purported to be overly stringent. We were
gratified to read that OMCS admitted that the ADA Adoes not apply to the
Federal regulations.@ 64 Fed. Reg. 66965; *see also* 64 Fed. Reg. 66965.
Thus, the OMCS at least agreed that the vision waiver program and other
programs of its kind, including waivers and exemptions, are not
statutorily required by the ADA. This admission should lead the agency
to reevaluate its position under the lower court decision in *Rauenhorst
v. U.S. DOT, FHWA,* 95 F. 3d 715 (1996). That decision, which predates
the U.S. Supreme Court opinion in *Albertsons,* was predicated on the
assumption that the ADA applied to federal safety and medical
qualification standards. Since the OMCS admitted that this is not the
case, and in light of the Supreme Court decision more narrowly
interpreting the ADA, the FMCSA should reassess its policy of granting
numerous exemptions to the vision standard.

While it may be technically correct that the decision in *Albertsons*
does not *Adirectly* affect the exemption program,@ 64 Fed. Reg. 66965
(emphasis added), it is very clear that from a factual standpoint the
Court disdained the agency grant of waivers in such an arbitrary and
capricious manner. Clearly, the Supreme Court did not place much
credence in the waivers issued by FHWA since it determined that
employers subject to the federal requirements were free to ignore the
waivers and did not have to hire drivers who held waivers. The common
sense impact of the Court=s decision is equally applicable to exemptions
issued by the FMCSA. Advocates has always maintained that the
appropriate procedure is to revise the standards based on relevant and
sufficient medical and safety information. In *Albertsons,* the Supreme
Court unanimously agreed with this position.

In reaching its decision, the Supreme Court discussed the legislative
history of the ADA. As Advocates had previously contended, the Court
concluded that A\[w\]hen Congress, enacted the ADA, it recognized that
federal safety rules would limit application of the ADA as a matter of
law.@ *Albertsons, slip op.* at 18. The Court cited the understanding of
Congress that A \>a person with a disability applying for or currently
holding a job subject to \[DOT standards for drivers\] must be able to
satisfy these physical qualification standards in order to be considered
a qualified individual with a disability under Title I of the
legislation.= S. Rep. No. 101-116, pp. 27-28 (1998) \[sic\].@ *Id.* The
relevant Congressional committees did request that the Secretary of
Transportation conduct a thorough review of knowledge about disabilities
and make required changes within 2 years of enactment of the ADA. While
FHWA and OMC failed to conduct such a review of the FMCSRs and medical
qualifications in general, a subsequent review of the vision standard by
FHWA found no empirical evidence on which to base any change in that
standard. Thus, the waiver program did not fulfill the Congressional
request to make necessary changes to the standards following a review
because Athe regulations establishing the vision waiver program did not
modify the general visual acuity standards.@ *Albertsons, slip op.* at
18. It cannot be contended that Congress, in enacting the ADA, sought to
undermine existing safety standards on an *ad hoc* basis by permitting
the employment of persons who do not meet the extant safety requirements
mandated by the Department of Transportation. As a result, the Supreme
Court concluded that it

> is simply not credible that Congress enacted the ADA (before there was
> any

waiver program) with the understanding that employers choosing to
respect

the Government=s sole substantive visual acuity regulation in the face
of an

experimental waiver might be burdened with an obligation to defend the

regulation=s application according to its own terms.

*Id.* at 22.

In light of the decision in *Albertsons,* the FMCSA must revisit the
position previously taken by both FHWA and OMCS, re-evaluate the
significance of the lower court decision in *Rauenhorst v. U.S. DOT,*
and reconsider the agency=s policy of issuing experimental vision
exemptions based on surrogate criteria for visual performance
requirements.

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

Henry M. Jasny

General Counsel

[^1]: This pressure to extend the reach of *ad hoc* exemptions, rather
    than establishing a sound medical and scientific basis for amending
    the medical qualifications standards in the FMCSRs, is evident from
    the FMCSA=s promulgation of a similar exemption program for drivers
    with insulin-treated diabetes mellitus. Notice of Final Disposition,
    68 FR 52441 (Sept. 3, 2001). The standard requiring motor carrier
    drivers to have no loss or impairment of limbs, 49 C.F.R. §
    391.41(b)(1), has become another target area for exemption requests
    despite the fact that the established regulations already includes a
    waiver program allowing the use of prostheses, *id.,* §
    391.49(d)(3)(i)(B). *See* 67 FR 11369 (Mar. 13, 2002). Moreover, the
    FMCSA has been required to review the application of a driver with
    monocular vision who is also missing part of his left arm. *Jerry W.
    Parker v. DOT*, No. 98-4331, 2000 FED App. 0094P (6^th^ Cir.)
    (agency to "create a functional capacity test consistent with its
    findings that an individual's driving record is indicative of future
    performance"). *See* 67 FR 54525, Aug. 22, 2002. On remand, FMCSA
    denied the application for exemption from the current limb
    requirements, requiring the applicant to use a properly fitted
    prosthesis. 68 FR 8794 (Feb. 25, 2003). That disposition in no way
    lessens the mounting pressure for *ad hoc* exemptions from medical
    and physical qualifications standards. The agency approach abets
    attempts to undermine the standards rather than base them on
    credible medical and scientific research.

[^2]: In the notice of applications for exemption for docket number
    FMCSA-2000-7918, the FMCSA represented to the public that applicant
    #38 had met the 3-year driving experience criterion and repeated
    what appears to be the applicant=s statement that he Aoperated
    straight trucks for four years, accumulating 100,000 miles.@ 65 FR
    66286, 66290 (Nov. 3, 2000). However, comments filed by the United
    Parcel Service (UPS) indicated that the applicant had been driving a
    commercial motor vehicle for only two years and four months at the
    time he filed his application for exemption. UPS comments dated Dec.
    4, 2000, to docket number FMCSA-2000-7918-3. Prior to being employed
    as a driver, the applicant performed non-driving duties. *Id.*,
    attached declaration of Richard L. Saucier. According to the UPS
    comment, the applicant "occasionally worked as a substitute driver@
    but his application indicated that he claimed to have been a
    A\>regular *temporary* driver= in 1995.@ UPS comments, p. 2
    (emphasis in original). Without concurrent driving experience with
    an employer other than UPS (and no other was reported on the
    application), the applicant did not meet the agency criterion of 3
    years driving experience immediately prior to the date of
    application. The agency could have avoided the problem and the
    misrepresentation to the public had it independently verified the
    information and investigated the self-reported claims made in the
    application. On further review, the agency determined that the
    applicant did not have the requisite 3 year driving experience and
    denied the exemption application. Notice of Final Disposition, 66 FR
    13825, 13826 (Mar. 7, 2001).

    In a separate instance, the FMCSA admitted that another applicant
    did not have the requisite three-year driving experience required to
    meet the agency criteria for exemption. The agency made a
    Apreliminary@ determination to grant that exemption on the basis of
    information he provided indicating that the applicant had driven
    commercial motor vehicles for the past 30 years. 65 FR 45817, 45819
    (July 25, 2000). The agency notice also stated that the applicant=s
    Aofficial driving record shows no accidents and no convictions of
    moving violations in a CMV for the past 3 years.@ *Id.*
    Subsequently, the agency learned that the applicant had not driven a
    commercial vehicle during the three-year period immediately prior to
    his application, a prerequisite for obtaining an exemption. 65 FR
    77066 (Dec. 8, 2000). The agency therefore denied the application,
    overturning its prior Apreliminary@ determination to grant the
    application. *Id.* This case further underscores the need for the
    FMCSA to verify the self-reported information provided by the
    applicants.

[^3]: A check of an applicant's recent state driving history only
    confirms that an applicant held a valid license and whether an
    applicant received citations or was involved in crashes during the
    three-year period covered by most state driving records. The state
    driving record does not actually verify that the applicant was
    employed and operating a commercial vehicle during any part or all
    of that time. Ironically, a record of citations or crashes while
    operating a commercial vehicle supplies indirect evidence of actual
    experience driving commercial vehicles, whereas a clear record with
    no documented infractions does not provide any evidence that the
    applicant operated commercial vehicles in that time frame. Since the
    agency considers this driving experience to be an essential factor
    for granting an exemption, direct verification of employment
    information is warranted.

[^4]: ^?^ Even were applicants requested to submit citation and crash
    information over their career such voluntary, self-reported
    information would not be reliable unless independently verified.

[^5]: Advocates realizes, however, that the FMCSA is reluctant, if not
    unwilling, to deny an exemption based on prior driving records
    submitted by state officials. For example, the California Department
    of Motor Vehicles submitted to the agency verified evidence that one
    applicant had been cited for driving on the wrong side of the road
    in 1995, five years prior to his exemption application, and also had
    been found to be the party most responsible for two crashes in 1995
    and 1996, which occurred five years and four years, respectively,
    prior to his exemption application. 65 FR 57232. Although the agency
    did not deny or rebut these facts it treated them as ancient history
    and, in granting the exemption, actually cited the applicants= past
    accident history as a positive sign that the applicants had improved
    their safety record during the three years immediately preceding the
    exemption application. *Id*. The fact that such an analysis runs
    directly counter to the agency=s working premise, that past record
    is a good predictor of future safety, is not mentioned in the
    agency's effort to rationalize all relevant information, no matter
    how negative, in a manner that bolsters the agency=s predetermined
    intent to grant such applications.

[^6]: Advocates does not concur with the FMCSA=s view that requiring
    some drivers to submit three year records and other drivers to
    submit longer records is necessarily arbitrary and capricious. *See*
    65 FR 57233. Where state laws vary, and certain states maintain
    records for longer periods of time, the agency can rely on those
    laws and official records. Regardless, the agency should assist all
    states in maintaining these critical safety records for periods of
    at least five and up to ten years.

[^7]: A number of applicants in earlier notices had crashes or violation
    convictions in the most recent three-year period prior to filing an
    exemption application. Those drivers, including some with relatively
    low self-reported accumulations of mileage, may have had additional
    crashes and convictions on their driving history prior to the last 3
    years. For example, in the current notice, applicant #20 reported
    driving for 10 years and his record reflects that in the past 3
    years he has been in one crash and convicted of a moving violation
    ("exceeding the speed limit by 10 mph."). 73 FR 15569. The 3-year
    record check, however, does not indicate whether he was involved in
    any crashes or moving violations in a commercial vehicle 4 or 5
    years ago. If he had been involved in additional reportable
    incidents that information would be relevant and significant in
    determining his potential future safety record according to the
    FMCSA's theory that the applicant's past record predicts future
    safety. However, that information has either been expunged from his
    driving record or has not been considered by the agency. Since FMCSA
    bases its decision to grant exemptions on only the last 3 years of
    an applicant's driving record, crashes and violations in prior years
    that cumulatively might indicate a greater safety problem are
    ignored. Thus, the vision exemption program criteria not only
    ignores prior crashes and violations if they occurred more than 3
    years before the application, but also strictly limits use of the 3
    year data to a formulaic application that allows multiple crashes
    and violations even when committed by "new" drivers. An agency study
    identified "new" drivers who need formal training as those with five
    or fewer years of experience. *Assessing the Adequacy of Commercial
    Motor Vehicle Driver Training* (1995). FMCSA should review each
    applicant's entire driving history to determine whether there is a
    pattern of involvement in crashes or convictions for violations that
    indicates the candidate may not meet the stringent level of safety
    required by law to grant an exemption.

[^8]: ^?^ FMCSA should be required to verify self-reports of driving
    mileage and years of experience. Not only should FMCSA attempt to
    ascertain mileage driven for the last three years, the pertinent
    period for which the agency checks state driving records, but the
    agency should also evaluate whether the criteria used in the
    exemption program is applicable for predicting future safety records
    based on low cumulative mileage totals over that three year period.

[^9]: Comparison of selected applicant self-reported information:

    APPLICANTYEARS DRIVINGTOTAL MILESANNUAL AVERAGE 11 9.5 32,300 3,400
    14 8 100,000 12,500 26 10 175,000 17,500 23 43.5 4,928,750 113,305
    10 20 2,400,000 120,000 5 20 3,200,000 160,000\* \* Applicant #5
    reports driving totals that would have required extremely high
    average annual miles driven each and every year over the two decades
    of reported driving experience. Especially under the pre-2004 hours
    of service regulations that limited weekly driving hours to 60 hours
    in 7 days (70 hours in 8 days), to accumulate such large total
    mileage would required the applicant to operate commercial vehicles
    almost continuously for 3,120 hours (60 times 52) each year, every
    year, for 20 years without time loss due to traffic congestion,
    weather, loading/unloading time or time off for vacation. FMCSA's
    failure to recognize and question such implausible self-reported
    information renders the entire exemption process worthless as a
    means of screening applicants for safety.

[^10]: Although not included in either of hours-of-service final rules,
    68 FR 22456 *et seq.* (Apr. 28, 2003) and 70 FR 49977 (Aug.
    25,2005), FMCSA originally proposed to distinguish between five
    types of drivers and driving regimes based on the type of vehicle
    driven and work performed: long haul; regional; local-split shift;
    local; and work vehicle. NPRM, 65 FR 25540 *et seq.* (May 2, 2000).

[^11]: Despite clear distinctions in types of operations, FMCSA makes no
    effort to evaluate or compare and contrast driving experiences based
    on operation of different types of commercial equipment under
    distinct driving conditions in which the applicants obtained their
    experience. In the current notice, for example, a number of
    applicants reported accumulating all their driving experience in
    either straight trucks or tractor-trailers alone, while other
    applicants reportedly drove both types of CMVs to varying degrees.
    For example, applicant #11 reportedly drove straight trucks
    exclusively for almost 10 years, accumulating a reported 32,300
    vehicle miles (73 FR at 15568), for an annual average of 3,400
    miles, with applicant #12 who also exclusively drove straight trucks
    for 19 years accumulating a reported 1.5 million driving miles
    (*id.*), for an annual average of 78,947 miles in straight trucks.
    Compare this with the experience of applicant #2 who reports
    accumulating 156,000 vehicle miles in 6 years of driving (*id.* at
    15567), for an average of only 26,000 miles per year, and applicant
    #5 who reported driving a total of 3.2 million vehicle miles in 20
    years of driving (*id.* at 15568), for an annual average of 160,000
    miles, but these drivers reported logging their mileage exclusively
    in tractor-trailer combinations. Also compare the experience of
    applicant #4, who reportedly drove 225,000 vehicle miles in straight
    trucks over 18 years (*id.* at 15567), an average of 12,500 miles
    each year, and 3.3 million miles in tractor-trailer combinations in
    31 years (*id.*), for an annual average of 106,452 miles, with
    applicant #6 who reported driving 75,000 vehicle miles in 3 years in
    straight trucks (i*d.* at 15568*)*, averaging 25,000 miles per year,
    and just 25,000 miles in tractor-trailer combinations over 4 months
    (*id*.) for an annual average of 75,000 miles a year in that type of
    rig. Further, contrast these driving experiences with applicant #1
    who reported driving 341,500 miles exclusively in buses over 10
    years (*id.* at 15567). Regardless of the significant differences in
    driving experience, FMCSA, nevertheless, treats all these reported
    driving histories as equal, or at least fails to differentiate
    between types of vehicles driven, total vehicle miles (and annual
    averages) reportedly driven, and the wide disparity in the length of
    service and operating experience reported by the applicants.

[^12]: Yet the FMCSA has distinguished differences in operations and
    crash experience between motor coaches and freight trucks by not
    including motor coach operations in the scope of the
    hours-of-service final rule that permits freight motor carrier
    operators to drive for as many as 77 hours in a 7 day period and up
    to 88 hours in an 8 day period. 68 FR 22456, 22462 (Apr. 28, 2003).

[^13]: ^?^ FMCSA's past reliance on facts and information that are not
    part of the record constituted a violation of procedural due
    process. Unless the agency placed the legal documents pertinent to
    each situation in the docket for public review and comment, the
    public and those submitting comments were at a disadvantage.
    Advocates, therefore, admonished the agency to refrain from mounting
    a unilateral defense of applicants involved in crashes or violations
    based on factual information that was not placed in the public
    record since it was inappropriate and prejudicial for FMCSA to
    proffer the applicant=s version of events, or to provide selective
    information from documents not in the public record of the agency
    regulatory proceeding, in an effort to support the application and
    bolster the basis for the agency=s safety determination. Moreover,
    Advocates pointed out that regardless of legal "fault," without
    careful accident investigation the agency is not able to
    definitively determine what role the applicant's visual impairment
    may have played as part of the circumstances leading up to the
    crash. Poor vision could play a subtle yet nevertheless critical
    factor in a crash that could not be determined without careful
    investigation. Even if there is no legal finding of Afault,@ the
    driver=s substandard vision might have been a factor in the
    causation of the crash.

[^14]: In past notices, eye examiners have explicitly stated the
    limitations of their examination. In one case, an opthalmologist
    frankly stated that "I am not familiar with the criteria of vision
    requirements of a commercial driver . . . ," 68 FR 19599 Apr. 21,
    2003), but nevertheless concludes that the applicant should continue
    to operate commercial vehicles. In another instance, after stating
    that the normal visual function of the left eye of the applicant
    "should supply him with sufficient vision to perform driving
    tasks\[,\]" the doctor goes on to state, "\[h\]owever, this only
    qualifies his visual potential *and not overall competency to
    perform the tasks of operating a commercial vehicle."* 67 FR 15662,
    15665 (Apr. 2, 2002) (emphasis added) (applicant #24). The agency
    should acknowledge this limitation applies to all the quoted
    statements of the eye examiners for each exemption application.

[^15]: In one example, an optometrist concluded that the applicant had
    sufficient vision to drive commercial vehicles basing his expert
    opinion of the applicant's visual capability on the applicant's
    self-report of his good "past driving record." 67 FR 76439, 76440
    (Dec. 12, 2002) (applicant #6). Even more ludicrous, the same
    optometrist cited the applicant's prior "good vision *when using
    both eyes*," a factual condition that had not existed for four (4)
    decades because the injury that damaged the macular area of the
    applicant's right eye took place 40 years prior to the examination.
    *Id.* (emphasis added).

    In another notice, the examining optometrist for an applicant cited
    the drivers' "past 29 years with a reportedly clean driving record."
    68 FR 37197, 37198 (June 23, 2003) (applicant #8). Yet the FMCSA
    indicated that the applicant only reported driving commercial
    vehicles for the last 9 years. *Id.* The dichotomy in the
    information was left unexplained.

[^16]: *See also* Qualification of Drivers; Vision Deficiencies; Waivers
    -- Notice of Final Determination and change in research plan, 59
    Fed. Reg. 59386, 59389 (Nov. 17, 1994) (Aobservations made by the
    Advocates, the ATA, the IIHS and others regarding flaws in the
    current research method have merit@).

[^17]: Originally enacted as Section 4007 of the Transportation Equity
    Act for the 21^st^ Century (TEA-21), Pub. L. 105-78, 112 Stat. 107
    (1998).

[^18]: A1. Possessing or displaying the qualities or characteristics
    that make something probable.@ American Heritage Dictionary of the
    English Language, 3^rd^ ed. (1992); A1. probably or apparently
    destined . . . 2. Seeming like truth, fact, or certainty; reasonable
    to be believed or expected\[,\]@ Random House Dictionary of the
    English Language, Unabridged Edition (1971).

[^19]: *See* likelihood-of-success-on-the-merits test, Black=s Law
    Dictionary, 7^th^ ed. (1999) (AThe rule that a litigant who seeks a
    preliminary injunction, or seeks to forestall the effects of a
    judgment during appeal, must show a reasonable probability of
    success in the litigation or appeal@).

[^20]: *Compare* 49 U.S.C. \' 31315(a) ("is likely to achieve a level of
    safety that is equivalent to or greater than, the level of safety
    that would have been achieved . . ."), *with* 49 U.S.C. \' 31136(e)
    ("consistent with the public interest and the safe operation of
    commercial motor vehicles").

[^21]: 49 U.S.C. \' 31136(e) (1992). The waiver provision was originally
    codified at 49 U.S.C. App. \' 2505(f), and was redesignated as 49
    U.S.C. \' 31136(e) in the 1994 recodification of title 49.

[^22]: ^22^ In fact, the appellate court that decided *Advocates for
    Highway and Auto Safety* v. *Federal Highway Administration*, 28
    F.3d 1288 (1994), did not interpret the legal standard for waivers
    as imposing an absolute standard that safety could not be reduced by
    issuance of a waiver. Rather, the Court accepted the agency=s view
    that waivers could only be issued if Athere will \>not be any
    diminution of safety resulting from the waiver=.@ *Id.* at 1294.
    This statement of the applicable standard was the agency=s
    formulation and is identical (in effect if not terminology) to the
    present standard for granting exemptions. Thus, the newer exemption
    standard B requiring Aequivalent to or greater@ level of safety B
    imposes at least the same legal burden (if not a higher one) than
    the prior standard for waivers. As a consequence, the exemption
    standard cannot be considered more discretion than the standard that
    applied to the issuance of waivers.

    The issue in *Advocates* did not, however, revolve around the
    stringency of the legal standard. The Court=s actual ruling was that
    the agency had no evidence to support issuing waivers and that, in
    reality, the record was Adevoid of empirical support in the record.@
    *Id.* It was not the case that the legal standard was too high, but
    rather that the agency had no factual evidence of any kind. Thus,
    the waiver program before the Court would not have passed muster
    under any legal standard.

[^23]: ^23^ Advocates disagrees with the stance adopted first by FHWA,
    and now FMCSA, that the waiver provision imposed an absolute safety
    standard that the agency could never meet. The waiver statute
    limited authority to issue waivers only to those waivers that were
    in the public interest and consistent with the safe operation of
    commercial vehicles. Even if this standard required that waivers
    could not result in lower levels of highway safety, then it is no
    different from the standard in the present exemption statute. The
    wording of the current exemption statute, by requiring exemptions to
    result in equivalent or greater safety, impose the same standard.
    The major difference then, between the two statutes is that the
    waiver provision required no specific burden of proof or legal
    quantity of factual evidence to support the determination to issue a
    waiver. Under the terms of the waiver provision the agency could
    support its determination, as any other regulatory decision, so long
    as it had some evidence in the record to indicate that the issuance
    of a waiver would not diminish safety. By contrast, the current
    exemption provision now imposes a distinctly greater burden of proof
    on the agency before an exemption can issue. The agency cannot now
    simply rely on some evidence in the record to support its
    determination the an exemption will result in equivalent or greater
    levels of highway safety; the agency must now show that it is
    likely, *i.e.*, probable, that the result will be an equivalent or
    greater level of safety. Thus, while the agency has the same
    ultimate goal, *viz.,* no less safety, it must now satisfy a higher
    legal burden of proof.

    To the extent that the FMCSA believes that the use of the term
    Alikely@ in the statute indicates that the current legal standard
    for granting exemptions provide more flexibility and discretion than
    the previous standard for issuing waivers, Advocates disagrees. It
    appears that FMCSA reads the term Alikely@ to permit some Awiggle
    room@ in making its determinations as to whether the safety outcome
    will result in equivalent or greater safety. As previously stated,
    the use of the term Alikely@ actually increases the legal and
    factual burden on the agency without in any way reducing the
    ultimate requirement to ensure that exemptions will not diminish
    highway safety.

[^24]: In fact, the legislative history contained in H.R. Conf. Rep. No.
    550 does not indicate any Congressional intent to permit the agency
    to accept less safety as a consequence of waivers or exemptions than
    was permitted through the application of a \"consistent with
    safety\" determination that was required for waivers. Moreover, any
    diminution of safety, such as through an increase in crashes and/or
    crash severity, clearly would violate the plain meaning of the
    current statutory text which requires that any and all awarded
    waivers and exemptions be likely to result in motor carrier
    operations which generate \"equivalent or greater safety.\"

[^25]: ^?^ American Heritage Dictionary of the English Language, 3^rd^
    ed. (1992).

[^26]: ^?^ Webster=s New Collegiate Dictionary 10^th^ ed. (1997).

[^27]: ^?^ In fact, the rigorous controls included in the exemption
    portion of section 31315 are a paradigm shift in the level of
    procedural adequacy required to be observed by FMCSA in reviewing
    the granting of exemptions. In light of the fact that Congress was
    aware that additional controls on the authority to grant exemptions
    were part of the legislation, and that the goal of the exemption
    process was to only grant exemptions that would achieve equivalent
    or greater safety, it cannot be argued that the current provision
    provided the agency more flexibility or directly overturned the
    decision in *Advocates.* That is most likely the reason that the
    language in the Senate Report was not included in the Conference
    Report substitute.

[^28]: ^?^ The Court was adjudicating the issuance of a waiver pursuant
    to 49 U.S.C. \' 31136(e), which has since been transmuted into
    exemptions under 49 U.S.C. \' 31315.