[Federal Register Volume 80, Number 78 (Thursday, April 23, 2015)]
[Notices]
[Pages 22765-22766]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09457]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2013-0126]


Qualification of Drivers; Application for Exemptions; Hearing

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 4 
individuals for exemptions from the Agency's physical qualifications 
standard concerning hearing for interstate drivers. The current 
regulation prohibits hearing impaired individuals from operating CMVs 
in interstate commerce. After notice and opportunity for public 
comment, the Agency concluded that granting exemptions for these 
drivers to operate property-carrying CMVs will provide a level of 
safety that is equivalent to or greater than the level of safety 
maintained without the exemptions. The exemptions are valid for a 2-
year period and may be renewed, and the exemptions preempt State laws 
and regulations.

DATES: The exemptions are effective April 23, 2015. The exemptions 
expire on April 24, 2017.

FOR FURTHER INFORMATION CONTACT: Charles A. Horan, III, Director, 
Office of Carrier, Driver and Vehicle Safety, (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: www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments, go to 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: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

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. 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).
    FMCSA grants 4 individuals an exemption from Sec.  391.41(b)(11) 
concerning hearing to enable them to operate property-carrying 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 each applicant's driving record found in the CDLIS,\1\ 
for CDL holders, and inspections recorded in MCMIS.\2\ For non-CDL 
holders, the Agency reviewed the driving records from the State 
licensing agency. Each applicant's record demonstrated a safe driving 
history. The Agency believes the drivers covered by the exemptions do 
not pose a risk to public safety.
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    \1\ 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.
    \2\ 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. Comments

    On April 2, 2014, FMCSA published a notice of receipt of exemption 
applications and requested public comment on 4 individuals. The comment 
period ended on May 2, 2014. In response to the notice, FMCSA received 
two comments, one from Deb Letney and a late submission received May 5, 
from Kristine Thatcher.
    Deb Letney acknowledges that crash data does not support an 
increased crash risk for hearing impaired drivers and that Oregon 
allows hearing impaired drivers to operate in intrastate commerce. 
However, she expresses concerns for ``the driver's ability to recognize 
activation of warning devices and to communicate with law enforcement 
or emergency workers.'' She recommends granting conditional exemptions 
requiring visual warning indicators and alternate forms of 
communication.

[[Page 22766]]

    Kristine Thatcher questions whether a hearing impaired driver is 
``as safe or safer in the operation of a CMV than those who are not 
hearing-impaired,'' and expresses concerns about recognizing 
``mechanical wear or failure'' such as air leaks, pressure changes, 
worn brakes, or a hazard warning such as a horn, that are usually 
recognized through sound. She expresses concern for the hearing 
impaired driver's inability to communicate in an emergency situation, 
``especially if passengers or hazardous materials are involved.'' 
Kristine Thatcher believes that during a skills test ``an examiner's 
ability to safely conduct a road test is compromised'' due to the 
distraction of alternate forms of communication. She doesn't believe 
that using flash cards during a skills test is appropriate because 
instruction ``cannot be condensed to one or two word flash cards'' and 
that ``CMV road test standards will be compromised.'' She believes that 
restrictions should be imposed to include class B only, no air brakes, 
automatic transmission only and no hazardous materials, no double/
triple endorsements and no motor coach with passengers.
    FMCSA Response: The Agency acknowledges these comments and concerns 
regarding testing and the public safety risk of a driver unable to 
verbally communicate and to hear warning signals or horns. However, 
because FMCSA's 2008 Evidence Report and previous research studies have 
not shown a higher safety risk for hearing impaired drivers, there is 
no basis for restrictions other than the current restriction of no 
operation of motorcoach or bus with passengers. Hearing impaired 
drivers routinely compensate for their lack of hearing through other 
senses. The concerns regarding testing can be overcome by using 
alternate forms of communication such as hand gestures, flash cards, 
pen/paper, dry erase board or by using electronic devices.

D. Exemptions Granted

    Following individualized assessments of the exemption applications, 
FMCSA grants exemptions from 49 CFR 391.41(b)(11) to 4 individuals. 
Under current FMCSA regulations, the 4 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. FMCSA has determined that the following 4 
applicants should be granted an exemption:

Rodney Braden

    Mr. Braden, 48, holds an operator's license in Kentucky.

Arthur Brown

    Mr. Brown, 47, holds an operator's license in Kentucky.

Anthony Castile, III

    Mr. Castile, 45, holds an operator's license in Pennsylvania.

Michael Steggs

    Mr. Steggs, 54, holds a Class A commercial driver's license (CDL) 
in Texas.

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 391.

Conclusion

    The Agency is granting exemptions from the hearing standard, 49 CFR 
391.41(b)(11), to 4 individuals based on an evaluation of each driver's 
safety experience. Safety analysis of information relating to these 4 
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. 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 4 drivers for a period of 2 years from 
the physical qualification standard concerning hearing: Rodney Braden 
(KY); Arthur Brown (KY); Anthony Castile, III (PA); and Michael Steggs 
(TX).

    Issued on: April 17, 2015.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2015-09457 Filed 4-22-15; 8:45 am]
 BILLING CODE 4910-EX-P