[Federal Register Volume 78, Number 22 (Friday, February 1, 2013)]
[Notices]
[Pages 7479-7484]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-02266]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2012-0154]


Qualification of Drivers; Application for Exemptions; National 
Association of the Deaf

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition.

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SUMMARY: FMCSA announces its decision to grant requests from 40 
individuals for exemptions from the Agency's physical qualifications 
standard concerning hearing for interstate drivers. The regulation and 
the associated advisory criteria published in the Code of Federal 
Regulations as the ``Instructions for Performing and Recording Physical 
Examinations'' have resulted in numerous drivers being prohibited from 
operating CMVs in interstate commerce based on the fact that they are 
unable to meet the hearing requirements. After notice and opportunity 
for public comment, the Agency concluded that granting exemptions for 
these CMV drivers will provide a level of safety that is equivalent to 
or greater than the level of safety maintained without the exemptions. 
FMCSA grants exemptions that will allow these 40 individuals to operate 
CMVs in interstate commerce for a 2-year period. The exemptions preempt 
State laws and regulations and may be renewed.

DATES: The exemptions are effective February 1, 2013. The exemptions 
expire on February 2, 2015.

FOR FURTHER INFORMATION CONTACT: Elaine M. Papp, Chief, Medical 
Programs Division, (202) 366-4001, [email protected], FMCSA, 
Department of Transportation, 1200 New Jersey Avenue SE., Room W64-224, 
Washington, DC 20590-0001. Office hours are 8:30 a.m. to 5 p.m., e.t., 
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

A. Electronic Access

    You may see all the comments online through the Federal Document 
Management System (FDMS) at: http://www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments, go to http://www.regulations.gov and/or Room W12-140 on the 
ground level of the West Building, 1200 New Jersey Avenue SE., 
Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through Friday, 
except Federal holidays.
    Privacy Act: Anyone may search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or of the person signing the comment, if 
submitted on behalf of an association, business, labor union, or other 
entity). You may review DOT's complete Privacy Act Statement in the 
Federal Register (75 FR 82132, December 29, 2010).

B. Background

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption 
from the safety regulations for a 2-year period if it finds ``such 
exemption would likely achieve a level of safety that is equivalent to, 
or greater than, the level that would be achieved absent such 
exemption.'' The statute also allows the Agency to renew exemptions at 
the end of the 2-year period. On May 25, 2012, FMCSA published a notice 
requesting public comment on NAD's application for an exemption on 
behalf of 45 drivers. The current provisions of the FMCSRs concerning 
hearing state that a person is physically qualified to drive a CMV if 
that person:

First perceives a forced whispered voice in the better ear at not 
less than 5 feet with or without the use of a hearing aid or, if 
tested by use of an audiometric device, does not have an average 
hearing loss in the better ear greater than 40 decibels at 500 Hz, 
1,000 Hz, and 2,000 Hz with or without a hearing aid when the 
audiometric device is calibrated to American National Standard 
(formerly ASA Standard) Z24.5--1951.

49 CFR 391.41(b)(11). This standard was adopted in 1970, with a 
revision in 1971 to allow drivers to be qualified under this standard 
while wearing a hearing aid, 35 FR 6458, 6463 (April 22, 1970) and 36 
FR 12857 (July 3, 1971).
    In support of its application for exemptions, the National 
Association of the Deaf (NAD), cited and relied on a study requested by 
the Agency's Medical Review Board and presented to the Agency in 2008. 
The Evidence Report was prepared for the purpose of providing 
information regarding the current state of knowledge on hearing and CMV 
driver safety.\1\ The NAD maintains that communication in trucking is 
no longer hampered by hearing loss because drivers increasingly rely on 
smartphones and other technology to communicate with dispatch. The NAD 
conducted over 100 hours of interviews with individuals who are deaf 
and hard of hearing and reports that deaf drivers face fewer 
distractions behind the wheel.
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    \1\ Price, N., Tiller, M., Reston, J., & Tregear, S., 
``Executive Summary on Hearing, Vestibular Function and Commercial 
Motor Driving Safety,'' presented to FMCSA on August 26, 2008. 
Retrieved April 27, 2012, from: http://www.fmcsa.dot.gov/rules-regulations/TOPICS/mep/report/Hearing-Evidence-Report-Final-Executive-Summary-prot.pdf. See the docket for this notice. The full 
text of the Evidence Report is available through a link at http://ntl.bts.gov/lib/30000/30400/30459/Hearing_DOT-FMCSA_-_FINAL_8-29-08.pdf. The evidence report also reviewed vestibular disorders, 
which are not included in these exemption applications.
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    FMCSA grants 40 individuals an exemption from the regulatory 
requirement in Sec.  391.41(b)(11) allowing individuals who do not meet 
the hearing requirements to operate CMVs in interstate commerce for a 
2-year period. The Agency's decision on these exemption applications is 
based on the current medical literature and information and the 
``Executive Summary on Hearing, Vestibular Function and Commercial 
Motor Driving Safety,'' (the 2008 Evidence Report) presented to FMCSA 
on August 26, 2008. The evidence report reached two conclusions 
regarding the matter of hearing loss and CMV driver safety: (1) No 
studies that examined the relationship between hearing loss and crash 
risk exclusively among CMV drivers were identified; and (2) evidence 
from studies of the private driver license holder population does not 
support the contention that individuals with hearing impairment are at 
an increased risk for a crash. In addition, the Agency reviewed the 
applicant's driving record found in the CDLIS,\2\ for CDL holders, and 
interstate and intrastate inspections recorded in MCMIS.\3\ The Agency

[[Page 7480]]

acknowledges there could be potential consequences of a driver being 
hearing impaired and/or deaf while operating a CMV under some 
scenarios. However, the Agency believes the drivers covered by the 
exemptions do not pose a risk to public safety.
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    \2\ Commercial Driver License Information System (CDLIS) is an 
information system that allows the exchange of commercial driver 
licensing information among all the States. CDLIS includes the 
databases of 51 licensing jurisdictions and the CDLIS Central Site, 
all connected by a telecommunications network.
    \3\ Motor Carrier Management Information System (MCMIS) is an 
information system that captures data from field offices through 
SAFETYNET, CAPRI, and other sources. It is a source for FMCSA 
inspection, crash, compliance review, safety audit, and registration 
data.
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C. Exemptions

    Following individualized assessments of the exemption applications, 
including a review of detailed follow-up information requested from 
each applicant, FMCSA grants exemptions from 49 CFR 391.41(b)(11) to 40 
individuals. Under current FMCSA regulations, all of the 40 drivers 
receiving exemptions from 49 CFR 391.41(b)(11) would have been 
considered physically qualified to drive a CMV in interstate commerce 
except that they do not meet the hearing requirement.
    In addition to evaluating the medical status of each applicant, 
FMCSA evaluated the crash and violation data for the 40 drivers, some 
of whom currently drive a CMV in intrastate commerce. The CDLIS and 
MCMIS were searched for crash and violation data on the 40 applicants. 
Each applicant's record demonstrated a safe driving history.
    FMCSA published a notice announcing the exemption applications and 
requested public comment for each of the applicants. A short summary of 
the applicants' qualifications follows. A discussion of the comments 
received follows in section D of this notice. For those applicants who 
were discussed in the previous notice but are not mentioned in this 
notice, the Agency will complete the evaluation of those applications 
and announce its decision at a later date.

Docket  FMCSA-2012-0154

    On May 25, 2012, FMCSA published a notice of receipt of exemption 
applications and requested public comment on 40 individuals (71 FR 
60606; Docket number FMCSA-2012-0154). The comment period ended on July 
30, 2012. Five hundred and seventy commenters responded to the Federal 
Register notice. A discussion of the comments is presented later in 
this document. FMCSA has determined that the following applicants 
should be granted an exemption.
David W. Bateman
    Mr. Bateman holds a class A commercial driver's license (CDL) from 
the state of Minnesota. He has driven intrastate for the past 14 years, 
including driving dump trucks and tractor trailer trucks. He would like 
to drive tractor trailer trucks in interstate commerce, if he is 
granted an exemption.
William B. Britt, Jr.
    Mr. Britt holds a class D driver's license from the state of 
Tennessee. Class D has a for-hire endorsement that allows a person to 
drive vehicles such as limousines and taxis. He operates his personal 
vehicle in his job as a repairman. He would like to obtain a CDL and 
drive passenger buses, if granted an exemption.
Ernest W. Brown
    Mr. Brown holds a class D driver's license from the state of 
Kentucky. He would like to obtain a CDL and drive CMVs greater than 
26,001 pounds in interstate commerce, if granted an exemption.
Cody J. Campbell
    Mr. Campbell holds a class D driver's license from Louisiana. He 
currently is a ``light duty driver,'' driving a tractor. He would like 
to obtain a CDL and drive heavy equipment such as a dump truck, or rig 
truck with a trailer, if granted an exemption.
Tyjuan M. Davis
    Mr. Davis holds a class D driver's license from the state of 
Florida. His family is in the trucking business and he would like to 
obtain a class A CDL and drive tractor trailers in interstate commerce, 
if granted an exemption.
Randall R. Doane
    Mr. Doane holds a class AM CDL from the state of Texas. He has 
logged over 250,000 miles driving trucks in interstate commerce prior 
to failing his hearing test recently. He has experience driving double/
triple trailers, tankers and hazardous material transport. He is 
currently permitted to drive a CMV in intrastate commerce. He would 
like to return to driving CMVs in interstate commerce, if granted an 
exemption.
Allen W. Estes
    Mr. Estes holds a class B CDL from the state of Louisiana. He has 
driven a bus transporting students to and from school since 1990. He 
would like to obtain a CDL so that he can transport students to events 
outside of Louisiana, if granted an exemption.
Leslie A. Fairbanks
    Mr. Fairbanks held a class A CDL driver's license from the state of 
Minnesota from 2001 until 2010, when he failed his hearing test. During 
that time he drove a variety of tractor trailer trucks in interstate 
commerce. He would like to obtain a CDL and return to driving tractor 
trailer trucks, if he is granted an exemption.
Edward T. Geariety
    Mr. Geariety held a class A CDL from the state of Minnesota from 
1996 until 2011, when he failed his hearing test. During that time he 
drove large trucks carrying stone from a quarry to customers. He would 
like to return to driving CMVs in interstate commerce, if granted an 
exemption.
Donald W. Gordon
    Mr. Gordon holds a class CM driver's license from the state of 
Pennsylvania. He operates a mini-van as an independent contractor 
picking up and delivering materials. He would like to obtain a CDL and 
drive CMVs for a national carrier, if granted an exemption.
William Edward Haab
    Mr. Haab holds a class D driver's license from the state of 
Louisiana. He is interested in obtaining a CDL and pursuing a career in 
commercial trucking, if granted an exemption.
Charles L. Harper
    Mr. Harper holds a driver's license from the state of Washington. 
He has driven rental vehicles and a 12-seat van for a group home. He 
would like to obtain a CDL and have the opportunity to drive CMVs in 
interstate commerce, if granted an exemption.
Cornelio Hernandez
    Mr. Hernandez holds a driver's license from the state of 
California. He has enrolled in a driving course for a class B CDL, but 
was unable to complete it as he did not pass the hearing test. He would 
like to obtain a class A or B CDL to pursue work driving CMVs in 
interstate commerce driver, if granted an exemption.
Alvin L. Johnson
    Mr. Johnson holds a class CM driver's license from the state of 
Georgia. He would like to attend driving school to obtain a CDL and 
drive CMVs in interstate commerce, if granted an exemption.
Jerry D. Jones
    Mr. Jones holds a class C CDL from the state of Texas. He has 7 
years' experience driving a variety of forklifts for a construction 
company. He would like to pursue opportunities driving CMVs in 
interstate commerce, if granted an exemption.

[[Page 7481]]

James E. Karr
    Mr. Karr holds a class DM driver's license from the state of 
Kentucky. He would like to obtain a CDL and seek employment 
opportunities driving CMVs in interstate commerce, if granted an 
exemption.
Lorin W. King
    Mr. King holds a class D driver's license from the state of 
Oklahoma. The class D license permits one to drive regular automobiles 
and trucks. He has experience driving single trailer vehicles with 
airbrakes. He would like to obtain a CDL and seek employment 
opportunities driving CMVs in interstate commerce, if granted an 
exemption.
Christopher Kuller
    Mr. Kuller holds a class M driver's license from the state of 
Indiana. In the past, he held a CDL and hazmat license, and drove in 
interstate commerce for 14 years, until he was unable to pass the DOT 
hearing test. He would like to obtain a CDL and return to driving CMVs 
in interstate commerce, if granted an exemption.
Julio Cesar Medrano
    Mr. Medrano holds a driver's license from the state of Washington. 
He is currently a student majoring in diesel technology, graduating in 
May 2012. Most job descriptions for diesel engine technicians include a 
requirement that he holds a CDL, due to the need to pick up and drive 
trucks back to the shop for repair. He would like to obtain a CDL and 
drive CMVs in interstate commerce, if granted an exemption.
Hal A. Miller
    Mr. Miller holds a class C driver's license from the state of Iowa. 
A class C allows the operation of vehicles under 26,000 pounds. He has 
experience operating a Ryder rental truck and personal farm tractors. 
He would like to obtain a CDL and drive CMVs in interstate commerce, if 
granted an exemption.
Kathy K. Miller
    Ms. Miller holds a class C driver's license from the state of Iowa. 
She has experience driving students to and from local activities. She 
is limited at work due to her not being able to pass the hearing test 
and obtain a DOT medical card. She would like to obtain a CDL and drive 
CMVs in interstate commerce, if granted an exemption. She is interested 
in career opportunities with package delivery companies.
Brian J. Minch
    Mr. Minch holds a driver's license from the state of New Hampshire. 
He currently drives super duty pick-up trucks for landscape and 
construction companies. He would like to obtain a CDL and drive CMVs in 
interstate commerce, if granted an exemption.
Larry J. Moss
    Mr. Moss holds a driver's license from the state of California. He 
currently works for a delivery and hauling service, driving trucks and 
often pulling a trailer. He would like to attend trucking school, 
obtain a CDL and drive CMVs in interstate commerce, if granted an 
exemption.
Leslie R. O'Rorke
    Mr. O'Rorke holds a class D driver's license from the state of 
Illinois. He has experience driving super duty pick-up trucks with a 
trailer and dump trucks for a tree service company. He would like to 
obtain a CDL and drive CMVs in interstate commerce, if granted an 
exemption.
Timothy A. Parker
    Mr. Parker holds a class C driver's license from the state of 
California. The class C license in California allows one to operate a 
traditional two-axle vehicle. He has experience operating 18-wheel 
trucks as well as forklifts. He would like to obtain a CDL so he can 
drive the tractor trailer trucks in interstate commerce, if granted an 
exemption.
Gregory M. Potter
    Mr. Potter holds a class C driver's license from the state of 
Texas. He has experience driving a company van and rental trucks towing 
a trailer. He would like to obtain a class A CDL to drive tanker trucks 
in interstate commerce, if granted an exemption.
Gerson P. Rameriez
    Mr. Rameriez holds a class D driver's license from the state of 
Montana. He has experience driving a dump truck towing a trailer. He 
also drove a truck for five years while working as a painter. He would 
like to obtain a class A CDL and attend a trucking school in Montana, 
if granted an exemption.
Jeremy Reams
    Mr. Reams holds a class D driver's license from the state of 
Kentucky. The class D is valid for any single motor vehicle, and a 
trailer with weights not greater than 26,000 pounds. He has experience 
driving 24-foot moving trucks, fifth wheel vehicles and has hauled 
ATV's for personal use. He would like to obtain a CDL to drive CMVs in 
interstate commerce, if granted an exemption.
Robert R. Rotondi
    Mr. Rotondi holds a driver's license from the state of South 
Carolina. He has experience driving rental trucks and forklifts. He 
currently owns a 12-foot trailer he uses to tow his motorcycle. He 
would like to obtain a class A or B CDL and drive CMVs in interstate 
commerce, if granted an exemption.
Daniel Schoultz
    Mr. Schoultz holds a class C driver's license from the state of 
Pennsylvania. He has 25 years' experience driving trucks, but he is 
currently not able to pass the DOT hearing test. He would like to 
obtain a CDL again and drive CMVs in interstate commerce, if granted an 
exemption.
Stanley W. Shields
    Mr. Shields holds a class D driver's license from the state of 
Kentucky. He would like to obtain a CDL and to seek employment 
opportunities as a CMV driver, if granted an exemption.
James M. Skinner
    Mr. Skinner holds a driver's license from the state of Florida that 
allows him to drive any non-commercial vehicle less than 26,001 pounds. 
He has experience driving rental trucks and towing rental trailers. He 
would like to obtain a class A CDL and drive an interstate tractor 
trailer weighing over 26,001 pounds with airbrakes, if granted an 
exemption.
Ronald J. Taylor
    Mr. Taylor holds a class C driver's license from the state of 
Texas. He is currently a student, but would like to seek opportunities 
in driving. He would like to obtain a CDL to drive CMVs in interstate 
commerce, if granted an exemption.
Justin J. Trethewey
    Mr. Trethewey holds a class C chauffeur license from the state of 
Michigan. He is starting his own transit business after working as a 
chauffeur. He would like to obtain a CDL and tow a gooseneck trailer to 
transport cars, recreational vehicles or small trailers, if granted an 
exemption.
Gilbert J. Valdez
    Mr. Valdez holds a driver's license from the state of Rhode Island. 
He currently works part-time and would like to obtain a CDL to seek 
employment opportunities driving CMVs in interstate commerce, if 
granted an exemption.

[[Page 7482]]

Mark L. Valimont
    Mr. Valimont holds a class C driver's license from the state of 
Texas. He is currently a package handler. He has 13 years' experience 
driving dump trucks and three years' experience driving a tractor. He 
would like to obtain a CDL and drive CMVs in interstate commerce, if 
granted an exemption.
Kevin C. Willis
    Mr. Willis holds a class C driver's license from the state of 
California. He has held a FAA Private Pilot Certificate since 2006 and 
flies private planes that weigh up to 12,500 pounds. He would like to 
obtain a CDL and pursue employment opportunities in the commercial 
transportation business, if granted an exemption.
James R. Wilson
    Mr. Wilson holds a class C driver's license from the state of 
Georgia. He has experience driving forklifts and a super duty pickup 
truck for a private employer. He would like to obtain a CDL and drive 
CMV's in interstate commerce, if granted an exemption.
Holly Cameron Wright, Jr.
    Mr. Wright holds a class C driver's license from the state of North 
Carolina. He has experience driving forklifts and commercial vehicles 
at his family-owned business site. He would like to obtain a CDL and 
drive CMVs in interstate commerce, if granted an exemption.

D. Comments

    In response to the notice, FMCSA received 570 comments.

Granting the Exemptions on a Trial Basis

    The American Trucking Associations (ATA) acknowledged the growing 
need in the industry for drivers and the difficulty in finding 
qualified drivers. Given this information, ``ATA believes that it is in 
the best interest of the FMCSA, the trucking industry, society and 
highway safety to grant the requested exemptions, with the following 
stipulations:
    (a) Granting exemptions to these 40 drivers would be viewed as a 
temporary, single instance measure, until the proposed study was 
completed;
    (b) In granting the exemptions, FMCSA should compel the applicants 
to participate in a study about safety performance, and
    (c) If the study indicates that the drivers perform safely, that 
FMCSA should initiate rulemaking to change the current standard.
    FMCSA Response: FMCSA notes that the ATA is interested in having 
more qualified drivers who would otherwise not be qualified due to 
their hearing impairment. However, FMCSA does not plan to implement the 
ATA proposal. FMCSA does not believe it would be beneficial to future 
applicants to restrict exemptions to a two-year, non-renewable process 
as part of a proposed new program. The FMCSA's 2008 Evidence Report 
found no increase in crash risk among hearing impaired drivers, and the 
Agency believes that additional studies could simply delay drivers 
receiving a CDL and prove costly to the government without providing 
meaningful additional safety to the driving public.

No Ad hoc Exemptions

    The Advocates for Highway and Auto Safety (Advocates) stated that 
they ``suggest it is time for FMCSA to engage the process to revise the 
standards rather than short-circuit those procedures in order to grant 
ad hoc exemptions.'' They further state their concern that the only 
scientific evidence presented was in connection with the FMCSA Hearing 
Evidence Report. They state that the 2008 Evidence Report is not a 
research study, but rather a review and evaluation of several prior 
studies related to hearing and drivers.
    FMCSA Response: The Agency does not believe a new scientific study 
is necessary to make a determination concerning the exemption 
applications. The 2008 Evidence Report found that previous studies by 
various researchers did not provide evidence to support the contention 
that individuals with hearing deficits are at an increased risk for a 
motor vehicle crash. And there is no basis for concluding that a new 
study would yield different results. Also, a number of States allow 
hearing impaired CMV drivers. In fact, several of the drivers discussed 
in this notice already have experience as CMV drivers. Based on the 
available literature, and the safe driving experience of these 
individuals, the Agency believes granting the exemption is appropriate. 
FMCSA evaluates each driver on a case-by-case basis and also 
investigates the past driving/violation record to ensure an acceptable 
level of safety.
    While the Agency appreciates Advocates' suggestion that the Agency 
should revise the standards rather than grant ad hoc exemptions, the 
rulemaking process is too lengthy to afford relief to the individuals 
affected here. With no specific data to show that hearing impaired or 
deaf drivers are a danger to the driving public, granting these 
exemptions will provide an opportunity to drivers to enter the trucking 
industry or further pursue driving careers.
    FMCSA has received a petition for rulemaking from NAD formally 
requesting that the Agency eliminate the hearing standard under 49 CFR 
Part 391. A copy of the petition, submitted in accordance with 49 CFR 
part 389 (Rulemaking Procedures--Federal Motor Carrier Safety 
Regulations) has been placed in the docket referenced at the beginning 
of this notice. The Agency will consider NAD's petition in accordance 
with the rules under 49 CFR part 389 and issue a decision on the matter 
at a later date. If the Agency grants the petition, it would initiate a 
rulemaking seeking public comment on proposed changes to the 
regulations.

Concerns About Exemptions for Bus Drivers With Passengers

    The American Bus Association (ABA) submitted comments stating their 
concerns regarding allowing hearing impaired or deaf drivers to drive 
buses with passengers. They stated ``The ABA's opposition to the NAD's 
application is bottomed on the tasks a CMV motorcoach driver must 
fulfill while responsible for up to fifty-five passengers in a 
motorcoach.'' They further state:

``While it may be true, as NAD contends, that technology may keep 
hearing impaired drivers from being `hampered' by the loss of 
hearing, that rationale cannot apply when a CMV driver is 
transporting passengers. For CMV motorcoach drivers piloting the 
vehicle is only a part of the driver's duties. Drivers with a `P' 
endorsement may be required to interact with passengers in any 
number of ways that requires the driver to successfully pass the 
hearing requirement in 49 CFR 391.''

They oppose the application for exemption to the extent that the 
exemption would allow any of the 40 applicants to obtain a CDL with a 
passenger endorsement or in any way qualify them to operate a 
motorcoach in interstate commerce.
    FMCSA Response: The Agency acknowledges ABA's concerns about the 
need for motorcoach drivers to communicate with the passengers in the 
event of an emergency. Motorcoach drivers are responsible for the 
safety of passengers and that the driver must be able to hear any sign 
of passenger distress. Therefore, the terms and conditions for the 
exemptions would not allow the hearing impaired drivers to operate a 
motorcoach with passengers in interstate commerce.

[[Page 7483]]

Not Safe for the Driving Public To Grant These Exemptions

    The Agency received an additional nine comments from private 
citizens and advocacy groups expressing their concern and asking FMCSA 
not to grant these exemptions. All of the these comments simply 
expressed that in their opinion they felt it was a safety issue, and 
they asked FMCSA not to grant any of the 40 exemptions.
    FMCSA Response: The Agency acknowledges these comments and their 
concerns. However, as previously stated there is no specific scientific 
data to show that hearing impaired drivers are a higher safety risk 
than other drivers. Also, several States already allow hearing impaired 
individuals to operate commercial vehicles in intrastate commerce and 
most, if not all States allow such individuals to operate passenger 
cars.

Support for Applicants and the Exemptions

    The FMCSA received 505 comments from individuals in support of the 
exemption applications. Most of them stated that the applicants should 
``be granted unrestricted exemptions from the hearing requirements'' 
and cited evidence from the FMCSA's 2008 Executive Study of the hearing 
requirement and that it shows there is not an increase in crash risk 
for hearing impaired drivers. The letter also states that they strongly 
feel these deaf drivers should be able to drive any type of vehicle.
    Some of the commenters stated that they would like FMCSA to allow 
all drivers with hearing impairment to be able to obtain a CDL. They 
state that with modern technology, such drivers can communicate without 
difficulty.
    A number of the comments stated that they believed FMCSA was 
discriminating against deaf drivers by prohibiting them from working in 
the trucking industry. Others stated that they thought that hearing 
impaired drivers were safer drivers and not going to be distracted by 
conversations, cell phones and radio noise. Others stated that with 
modern technology, there was not a hearing requirement in their 
opinion. Additionally, there were comments that other countries allow 
hearing impaired drivers to operate CMVs and that some States offer a 
waiver to hearing impaired drivers for intrastate driving.
    The FMCSA also received an additional 43 comments in support of 
these exemptions from advocacy groups. These included comments from: 
the Nebraska Commission for the Deaf and Hard of Hearing; Regional 
Center for Independent Living; First People of GA; and the Commonwealth 
of Massachusetts, Department of Mental Health. All stated their belief 
that granting these exemptions is the right thing to do at this time.
    In addition, the Agency received a comment of support from the 
National Association of the Deaf, the organization that submitted the 
application on behalf of the drivers. NAD stated that it 
``unequivocally supports the granting of a full exemption to each of 
the 45 drivers.'' They have a concern regarding the validity of the 
``forced whisper test'' to assess hearing and cite FMCSA's 2008 
Evidence Report. They state that the report raised questions about the 
validity of the same test. They also called for the removal of the 
hearing requirement altogether from FMCSA's physical qualification 
standards.
    The U.S. Equal Employment Opportunity Commission (EEOC) believes 
granting the exemptions would be consistent with the Americans with 
Disabilities Act (ADA). EEOC ``urges FMCSA to give due consideration to 
the results of the 2008 hearing loss study as it represents current and 
objective evidence that will help the agency determine whether a driver 
who cannot meet the hearing standard should be permitted to operate a 
CMV in interstate commerce.'' They further urged the Agency to adopt a 
flexible and comprehensive approach to be able to obtain a CDL.
    Deaf Truckers United stated that drivers who are hearing impaired 
rely on their other heightened senses such as vision and touch. They 
state that these drivers are more keenly aware of these senses and that 
they are able to pick up things that hearing drivers miss. They also 
ask that the hearing requirement be removed from 49 CFR Part 391.
    FMCSA Response: FMCSA acknowledges support for these exemptions. 
The Agency carefully reviewed all the comments about every individual. 
As stated above, the rulemaking process is too lengthy to afford relief 
to the individuals affected here. FMCSA has received a petition for 
rulemaking from NAD formally requesting that the Agency eliminate the 
hearing standard under 49 CFR Part 391. The Agency will consider the 
petition in accordance with the rules under 49 CFR Part 389, and issue 
a decision on the matter at a later date. If the Agency grants the 
petition, it would initiate a rulemaking seeking public comment on 
proposed changes to the regulations.

E. Basis for Exemption

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption 
from the hearing standard in 49 CFR 391.41(b)(11) if the exemption is 
likely to achieve an equivalent or greater level of safety than would 
be achieved without the exemption. With the exemption, applicants can 
drive in interstate commerce. Thus, the Agency's analysis focuses on 
whether an equal or greater level of safety is likely to be achieved by 
permitting each of these drivers to drive in interstate commerce as 
opposed to restricting him or her to driving in intrastate commerce. 
The driver must comply with the terms and conditions of the exemption. 
This includes reporting any crashes or accidents as defined in 49 CFR 
390.5 and reporting all citations and convictions for disqualifying 
offenses under 49 CFR part 383 and 49 CFR part 391.

Conclusion

    The Agency is granting exemptions from the hearing standard, 49 CFR 
391.41(b)(11), to 40 individuals based on a thorough evaluation of each 
driver's qualifications, safety experience, and medical condition. 
Safety analysis of information relating to these 40 applicants meets 
the burden of showing that granting the exemptions would achieve a 
level of safety that is equivalent to or greater than the level that 
would be achieved without the exemption. By granting the exemptions, 
the CMV industry will gain 40 additional CMV drivers. In accordance 
with 49 U.S.C. 31315, each exemption will be valid for 2 years from the 
effective date, with annual recertification required unless revoked 
earlier by FMCSA. The exemption will be revoked if the following 
occurs: (1) The person fails to comply with the terms and conditions of 
the exemption; (2) the exemption has resulted in a lower level of 
safety than was maintained prior to being granted; or (3) continuation 
of the exemption would not be consistent with the goals and objectives 
of 49 U.S.C. 31136 and 31315.
    FMCSA exempts the following 40 drivers for a period of 2 years with 
annual medical certification required: David W. Bateman (MN); William 
B. Britt (TN); David W. Brown (ME); Ernest W. Brown (KY); Cody J. 
Campbell (IA); Tyjuan M. Davis (FL); Randall R. Doane (TX); Allan W. 
Estes (LA); Leslie A. Fairbanks (MN); Edward T. Geariety (NY); Donald 
W. Gordon (PA); William Edward Haab (LA); Charles L. Harper (WA); 
Cornelio E. Hernandez (CA); Alvin Leo Johnson (GA); Jerry D. Jones

[[Page 7484]]

(TX); James Karr (KY); Christopher Kuller (PA); Lorin W. King (OK); 
Julio Cesar Medrano (WA); Hal A. Miller (IA); Kathy K. Miller (IA); 
Brian I. Minch (NH); Larry J. Moss (CA);Lesley R. O'Rorke (IL); Timothy 
A. Parker (CA); Gregory M. Potter (TX); Gerson P. Ramirez (MT); Jeremy 
Reams (KY); Robert R. Rotondi (SC); Daniel Schoultz (PA); Stanley W. 
Shields (KY); James M. Skinner (FL); Ronald J. Taylor (TX); Justin J. 
Trehtewey (MI); Gilbert Valdez (RI); Mark L. Valimont (TX); Kevin C. 
Wllis (CA); James R. Wilson (GA); Holly Cameron Wright Jr. (NC) from 
the prohibition of CMV operations by persons with who do not meet the 
hearing requirement. If the exemption is still in effect at the end of 
the 2-year period, the person may apply to FMCSA for a renewal under 
procedures in effect at that time.

    Issued on: January 29, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-02266 Filed 1-30-13; 4:15 pm]
BILLING CODE 4910-EX-P