2022-28627. Qualification of Drivers; Exemption Applications; Hearing

AGENCY:

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

ACTION:

Notice of renewal of exemptions; request for comments.

SUMMARY:

FMCSA announces its decision to renew exemptions for 25 individuals from the hearing requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) for interstate commercial motor vehicle (CMV) drivers. The exemptions enable these hard of hearing and deaf individuals to continue to operate CMVs in interstate commerce.

DATES:

Each group of renewed exemptions were applicable on the dates stated in the discussions below and will expire on the dates provided below. Comments must be received on or before February 6, 2023.

ADDRESSES:

You may submit comments identified by the Federal Docket Management System Docket No. FMCSA-2012-0154, Docket No. FMCSA-2014-0103, Docket No. FMCSA-2014-0106, Docket No. FMCSA-2014-0384, Docket No. FMCSA-2014-0386, Docket No. FMCSA-2015-0328, Docket No. FMCSA-2016-0002, Docket No. FMCSA-2017-0057, Docket No. FMCSA-2017-0058, Docket No. FMCSA-2018-0135, Docket No. FMCSA-2018-0136, Docket No. FMCSA-2019-0111, or Docket No. FMCSA-2020-0028 using any of the following methods:

• Federal eRulemaking Portal: Go to www.regulations.gov/​, insert the docket number (FMCSA-2012-0154, FMCSA-2014-0103, FMCSA-2014-0106, FMCSA-2014-0384, FMCSA-2014-0386, FMCSA-2015-0328, FMCSA-2016-0002, FMCSA-2017-0057, FMCSA-2017-0058, FMCSA-2018-0135, FMCSA-2018-0136, FMCSA-2019-0111, or FMCSA-2020-0028) in the keyword box and click “Search.” Next, sort the results by “Posted (Newer-Older),” choose the first notice listed, and click on the “Comment” button. Follow the online instructions for submitting comments.

• Mail: Dockets Operations; U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.

• Hand Delivery: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m. ET Monday through Friday, except Federal holidays.

• Fax: [phone].

To avoid duplication, please use only one of these four methods. See the “Public Participation” portion of the SUPPLEMENTARY INFORMATION section for instructions on submitting comments.

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, [phone], [e-mail]. Office hours are 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, [phone].

SUPPLEMENTARY INFORMATION:

I. Public Participation

A. Submitting Comments

If you submit a comment, please include the docket number for this notice (Docket No. FMCSA-2012-0154, Docket No. FMCSA-2014-0103, Docket No. FMCSA-2014-0106, Docket No. FMCSA-2014-0384, Docket No. FMCSA-2014-0386, Docket No. FMCSA-2015-0328, Docket No. FMCSA-2016-0002, Docket No. FMCSA-2017-0057, Docket No. FMCSA-2017-0058, Docket No. FMCSA-2018-0135, Docket No. FMCSA-2018-0136, Docket No. FMCSA-2019-0111, or Docket No. FMCSA-2020-0028) indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.

To submit your comment online, go to www.regulations.gov/​, insert the docket number (FMCSA-2012-0154, FMCSA-2014-0103, FMCSA-2014-0106, FMCSA-2014-0384, FMCSA-2014-0386, FMCSA-2015-0328, FMCSA-2016-0002, FMCSA-2017-0057, FMCSA-2017-0058, FMCSA-2018-0135, FMCSA-2018-0136, FMCSA-2019-0111, or FMCSA-2020-0028) in the keyword box and click “Search.” Next, sort the results by “Posted (Newer-Older),” choose the first notice listed, click the “Comment” button, and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. FMCSA will consider all comments and material received during the comment period.

B. Viewing Comments

To view comments go to www.regulations.gov. Insert the docket number (FMCSA-2012-0154, FMCSA-2014-0103, FMCSA-2014-0106, FMCSA-2014-0384, FMCSA-2014-0386, FMCSA-2015-0328, FMCSA-2016-0002, FMCSA-2017-0057, FMCSA-2017-0058, FMCSA-2018-0135, FMCSA-2018-0136, FMCSA-2019-0111, or FMCSA-2020-0028) in the keyword box and click “Search.” Next, sort the results by “Posted (Newer-Older),” 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 Room W12-140 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 [phone] or [phone] before visiting Dockets Operations.

C. 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 (FDMS)), 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

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. 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 physical qualification standard for drivers regarding hearing found in 49 CFR 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.

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).

The 25 individuals listed in this notice have requested renewal of their exemptions from the hearing standard in § 391.41(b)(11), in accordance with FMCSA procedures. Accordingly, FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable 2-year period.

III. Request for Comments

Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b), FMCSA will take immediate steps to revoke the exemption of a driver.

IV. Basis for Renewing Exemptions

In accordance with 49 U.S.C. 31136(e) and 31315(b), each of the 25 applicants has satisfied the renewal conditions for obtaining an exemption from the hearing requirement. The 25 drivers in this notice remain in good standing with the Agency. In addition, for commercial driver's license (CDL) holders, the Commercial Driver's License Information System and the Motor Carrier Management Information System are searched for crash and violation data. For non-CDL holders, the Agency reviews the driving records from the State Driver's Licensing Agency. These factors provide an adequate basis for predicting each driver's ability to continue to safely operate a CMV in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each of these drivers for a period of 2 years is likely to achieve a level of safety equal to that existing without the exemption.

In accordance with 49 U.S.C. 31136(e) and 31315(b), the following groups of drivers received renewed exemptions in the month of January and are discussed below.

As of January 15, 2023, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following 16 individuals have satisfied the renewal conditions for obtaining an exemption from the hearing requirement in the FMCSRs for interstate CMV drivers:

Michael Arwood (TN)

David Chappelear (TX)

Joshua Cogan (MD)

Sean Dearsman (OH)

Jan Epitacio (CA)

Jerry Jones (TX)

Robert Knapp (MD)

James Laughrey (KS)

Christopher McKenzie (TX)

Kathy Miller (IA)

Ervin Mitchell (TX)

Lesley O'Rorke (IL)

Gerson Ramirez (MT)

William Ranson (AR)

William Tassell (OH)

Michael Wilkes (MA)

The drivers were included in docket numbers FMCSA-2012-0154, FMCSA-2014-0103, FMCSA-2014-0106, FMCSA-2014-0384, FMCSA-2014-0386, FMCSA-2016-0002, FMCSA-2017-0057, FMCSA-2017-0058, FMCSA-2018-0135, FMCSA-2018-0136, or FMCSA-2019-0111. Their exemptions are applicable as of January 15, 2023 and will expire on January 15, 2025.

As of January 22, 2023, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following nine individuals have satisfied the renewal conditions for obtaining an exemption from the hearing requirement in the FMCSRs for interstate CMV drivers:

Hassan Abdi (MN)

Gage Burchett (VA)

Jeffrey Daniel (NV)

Gabriel Despanie (LA)

Jaymes Haar (IA)

Andrew Hatch (IA)

MarcKenzie Loriston (FL)

Carlos Sotelo Sanchez (CA)

Matthew Spainhoward (KY)

The drivers were included in docket numbers FMCSA-2015-0328 or FMCSA-2020-0028. Their exemptions are applicable as of January 22, 2023 and will expire on January 22, 2025.

V. Conditions and Requirements

The exemptions are extended subject to the following conditions: (1) each driver must report any crashes or accidents as defined in § 390.5T; and (2) report all citations and convictions for disqualifying offenses under 49 CFR parts 383 and 391 to FMCSA; and (3) each driver 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. Each exemption will be valid for 2 years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (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 before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b).

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 25 exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the hearing requirement in § 391.41(b)(11). In accordance with 49 U.S.C. 31136(e) and 31315(b), each exemption will be valid for two years unless revoked earlier by FMCSA.

Larry W. Minor,

Associate Administrator for Policy.