[Federal Register Volume 80, Number 194 (Wednesday, October 7, 2015)]
[Notices]
[Pages 60741-60743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25498]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2014-0106]


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 14 
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 October 7, 2015. The exemptions 
expire on October 10, 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

[[Page 60742]]

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 14 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 January 22, 2015, FMCSA published a notice of receipt of 
exemption applications and requested public comment on 14 individuals 
(FR 80 3306; Docket number FMCSA-2015-00995). The comment period ended 
on February 23, 2015. In response to this notice, one comment was 
received expressing concern for the process by which exemptions are 
granted from parts of 49 CFR 391.41, the increased volume of 
exemptions, and the need to rely on scientific support as a basis for 
granting the exemptions. The American Trucking Associations, Inc. (ATA) 
submitted a comment stating, ``The granting of such a large number of 
exemptions dilutes the physical qualification standards and constitutes 
regulation through exemption. FMCSA must begin a dialogue on the need 
and effectiveness of these standards. If it is determined that these 
standards need to be altered, it must be done through the formal 
rulemaking process.'' FMCSA acknowledges ATA's concerns and may 
consider in the future the initial steps to a formal rulemaking process 
to revise physical qualification standards.

D. Exemptions Granted

    Following individualized assessments of the exemption applications, 
FMCSA grants exemptions from 49 CFR 391.41(b)(11) to 14 individuals. 
Under current FMCSA regulations, all of the 14 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 14 applicants should be granted an exemption:

Weston Tyler Arhurs

    Mr. Arthurs, 28, holds an operator's license in California.

Kevin Ray Ballard

    Mr. Ballard, 38, holds an operator's license in Texas.

Jeremy Wayne Brandyberry

    Mr. Brandyberry, 34, holds an operator's license in Nebraska.

Scott C. Friede

    Mr. Friede, 40, holds a Class A commercial driver's license (CDL) 
in Nebraska.

Glenn E. Hivey

    Mr. Hivey, 81, holds a Class A commercial driver's license (CDL) in 
Pennsylvania.

Jeremiah Putnam Hoagland

    Mr. Hoagland, 35, holds a Class A commercial driver's license (CDL) 
in Colorado.

Curtis J. Horning

    Mr. Horning, 40, holds an operator's license in Pennsylvania.

Leroy Lynch

    Mr. Lynch, 59, holds a Class A commercial driver's license (CDL) in 
Ohio.

Floyd McClain, Jr.

    Mr. McClain, 38, holds an operator's license in Florida.

Christopher David McKenzie

    Mr. McKenzie, 37, holds an operator's license in Texas.

Kimothy Fred Mcleod

    Mr. Mcleod, 51, holds a Class A commercial driver's license (CDL) 
in Georgia.

Victor Morales-Contreras

    Mr. Morales-Contreras, 27, holds an operator's license in Texas.

Brandon Veronie, Sr.

    Mr. Veronie, 36, holds a chauffeur's license in Louisiana.

Anthony L. Witcher

    Mr. Witcher, 55, holds a chauffeur's license in Michigan.

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

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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 14 individuals based on an evaluation of each 
driver's safety experience. Safety analysis of information relating to 
these 14 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 14 drivers for a period of 2 years from 
the physical qualification standard concerning hearing: Weston Tyler 
Arhurs (CA); Kevin Ray Ballard (TX); Jeremy Wayne Brandyberry (NE); 
Scott C. Friede (NE); Glenn E. Hivey (PA); Jeremiah Putnam Hoagland 
(CO); Curtis J. Horning (PA); Leroy Lynch (OH); Floyd McClain, Jr. 
(FL); Christopher David McKenzie (TX); Kimothy Fred Mcleod (GA); Victor 
Morales-Contreras (TX); Brandon Veronie, Sr. (LA); and Anthony L. 
Witcher (MI).

    Issued on: September 29, 2015.
 Larry W. Minor,
 Associate Administrator for Policy.
[FR Doc. 2015-25498 Filed 10-6-15; 8:45 am]
 BILLING CODE 4910-EX-P