[Federal Register Volume 88, Number 239 (Thursday, December 14, 2023)]
[Notices]
[Pages 86726-86727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27458]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2023-0024]


Qualification of Drivers; Exemption Applications; Hearing

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

ACTION: Notice of final disposition.

-----------------------------------------------------------------------

SUMMARY: FMCSA announces its decision to exempt 11 individuals from the 
hearing requirement in the Federal Motor Carrier Safety Regulations 
(FMCSRs) to operate a commercial motor vehicle (CMV) in interstate 
commerce. The exemptions enable these hard of hearing and deaf 
individuals to operate CMVs in interstate commerce.

DATES: The exemptions are applicable on December 11, 2023. The 
exemptions expire on December 11, 2025.

FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief, 
Medical Programs Division, FMCSA, DOT, 1200 New Jersey Avenue SE, Room 
W64-224, Washington, DC 20590-0001, (202) 366-4001, 
[email protected]. Office hours are from 8:30 a.m. to 5 p.m. ET 
Monday through Friday, except Federal holidays. If you have questions 
regarding viewing or submitting material to the docket, contact Dockets 
Operations, (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

I. Public Participation

A. Viewing Comments

    To view comments go to www.regulations.gov. Insert the docket 
number (FMCSA-2023-0024) in the keyword box and click ``Search.'' Next, 
sort the results by ``Posted (Older-Newer),'' choose the first notice 
listed, and click ``Browse Comments.'' If you do not have access to the 
internet, you may view the docket online by visiting Dockets Operations 
in on the ground floor of the DOT West Building, 1200 New Jersey Avenue 
SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m. ET Monday 
through Friday, except Federal holidays. To be sure someone is there to 
help you, please call (202) 366-9317 or (202) 366-9826 before visiting 
Dockets Operations.

B. Privacy Act

    In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments 
from the public on the exemption requests. 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 (Federal Docket Management System), which can be 
reviewed at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices, the comments are searchable by the name of 
the submitter.

II. Background

    On November 1, 2023, FMCSA published a notice announcing receipt of 
applications from 11 individuals requesting an exemption from the 
hearing requirement in 49 CFR 391.41(b)(11) to operate a CMV in 
interstate commerce and requested comments from the public (88 FR 
75088). The public comment period ended on December 1, 2023, and five 
comments were received.
    FMCSA has evaluated the eligibility of these applicants and 
determined that granting exemptions to these individuals would likely 
achieve a level of safety that is equivalent to, or greater than, the 
level that would be achieved by complying with Sec.  391.41(b)(11).
    The physical qualification standard for drivers regarding hearing 
found in Sec.  391.41(b)(11) states 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.

[[Page 86727]]

    This standard was adopted in 1970 and was revised in 1971 to allow 
drivers to be qualified under this standard while wearing a hearing aid 
(35 FR 6458, 6463 (Apr. 22, 1970) and 36 FR 12857 (July 8, 1971), 
respectively).

III. Discussion of Comments

    FMCSA received five comments in this proceeding. Of the five 
comments received, four commenters are in support of all applicants in 
this notice being granted the exemption and one commenter is 
specifically in support of Francis McBride being granted the exemption. 
The commenters, in general, also strongly urged FMCSA to remove or 
reconsider the Federal hearing standard. They indicated that hard of 
hearing and deaf drivers are likely as safe, if not safer, than CMV 
drivers that meet the Federal hearing standard and that there is recent 
information that supports this position.
    FMCSA's basis for granting an exemption is stated in the next 
section of this notice, referencing relevant scientific information and 
literature. However, FMCSA is currently conducting research to 
investigate the safety of CMV operation by hard of hearing and deaf 
drivers. This research includes a thorough literature review of the 
topic to identify the most current information available on this topic. 
More information regarding this research can be viewed at https://www.fmcsa.dot.gov/safety/research-and-analysis/investigating-safety-commercial-motor-vehicle-operation-deaf-and-hard.

IV. Basis for Exemption Determination

    Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption 
from the FMCSRs for no longer than a 5-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 statutes also allow the Agency to renew exemptions at 
the end of the 5-year period. However, FMCSA grants medical exemptions 
from the FMCSRs for a 2-year period to align with the maximum duration 
of a driver's medical certification.
    The Agency's decision regarding these exemption applications is 
based on relevant scientific information and literature, and the 2008 
Evidence Report, ``Executive Summary on Hearing, Vestibular Function 
and Commercial Motor Driving Safety.'' 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's 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 Commercial 
Driver's License Information System, for commercial driver's license 
(CDL) holders, and inspections recorded in the Motor Carrier Management 
Information System. For non-CDL holders, the Agency reviewed the 
driving records from the State Driver's Licensing Agency. Each 
applicant's record demonstrated a safe driving history. Based on an 
individual assessment of each applicant that focused on whether an 
equal or greater level of safety would likely be achieved by permitting 
each of these drivers to drive in interstate commerce, the Agency finds 
the drivers granted this exemption have demonstrated that they do not 
pose a risk to public safety.
    Consequently, FMCSA finds further that in each case exempting these 
applicants from the hearing standard in Sec.  391.41(b)(11) would 
likely achieve a level of safety equal to that existing without the 
exemption, consistent with the applicable standard in 49 U.S.C. 
31315(b)(1).

V. Conditions and Requirements

    The terms and conditions of the exemption are provided to the 
applicants in the exemption document and include the following: (1) 
each driver must report any crashes or accidents as defined in Sec.  
390.5T; (2) each driver must report all citations and convictions for 
disqualifying offenses under 49 CFR parts 383 and 391 to FMCSA; and (3) 
each driver is prohibited from operating a motorcoach or bus with 
passengers in interstate commerce. The driver must also have a copy of 
the exemption when driving, for presentation to a duly authorized 
Federal, State, or local enforcement official. In addition, the 
exemption does not exempt the individual from meeting the applicable 
CDL testing requirements.

VI. Preemption

    During the period the exemption is in effect, no State shall 
enforce any law or regulation that conflicts with this exemption with 
respect to a person operating under the exemption.

VII. Conclusion

    Based upon its evaluation of the 11 exemption applications, FMCSA 
exempts the following drivers from the hearing standard; in Sec.  
391.41(b)(11), subject to the requirements cited above:

Melissa Bartlett (LA)
Jeromy Brand (AL)
Bryan Elzy (LA)
Brian Greco (NM)
Bradley Hess (WA)
Tony Jones (TX)
Alexander Lindsay (OH)
Francis McBride (NC)
Ray Perry (TX)
Lakeisha Rosbia (AR)
Anthony Scott (AL)

    In accordance with 49 U.S.C. 31315(b), each exemption will be valid 
for 2 years from the effective date 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, 49 
U.S.C. chapter 313, or the FMCSRs.

Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2023-27458 Filed 12-13-23; 8:45 am]
BILLING CODE 4910-EX-P