2015-09459. Qualification of Drivers; Application for Exemptions; Hearing

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of final disposition.

SUMMARY:

FMCSA announces its decision to grant requests from 10 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, [phone], [e-mail], 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,, at any time 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., Monday through Friday, except Federal holidays. The FDMS is available 24 hours each day, 365 days each year. If you want acknowledgment that we received your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments on-line.

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 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 provision (49 CFR 391.41(b)(11)) 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.

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 10 individuals an exemption from § 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.

C. Comments

On December 5, 2013, FMCSA published a notice of receipt of exemption applications and requested public comment on 10 individuals (Docket number FMCSA-2013-0125). The comment period ended on January 2, 2014. In response to the notice, FMCSA received three comments. All three commenters support the idea of granting exemptions. One of the commenters included in this notice, James Gooch, stated that he has held a CDL for a long time and has experience driving locally. Andrew Mudgett identified many important aspects that should be considered before granting a hearing exemption such as moral, economic, safety, exemption options and terms. Instead of disallowing deaf or hearing impaired drivers to drive, he supports restrictions if necessary and “as much leniency as possible” be given applicants of hearing exemptions. Bobby B stated that drivers should be evaluated individually because safety is important and that operating in a restricted environment should be considered if necessary.

FMCSA Response: FMCSA acknowledges that safety and a safe driving record are important factors to consider when granting hearing exemptions. All of the drivers in this notice hold CDLs and have demonstrated a safe driving history. FMCSA evaluates past driving history and violations to ensure an acceptable level of safety. The Agency acknowledges the necessity of restrictions in that the exemption restricts these applicants from operating a motorcoach or bus with passengers in interstate commerce.

D. Exemptions Granted

Following individualized assessments of the exemption applications, FMCSA grants exemptions from 49 CFR 391.41(b)(11) to 10 individuals. Under current FMCSA regulations, all of the 10 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 applicants should be granted an exemption:

Sascha Cotton

Mr. Cotton, 40, holds a class A commercial driver's license (CDL) in Florida.

Keith C. Drown

Mr. Drown, 62, holds a class A commercial driver's license (CDL) in Idaho.

Norman Estes

Mr. Estes, 61, holds a class A commercial driver's license (CDL) in Alabama.

David Garland

Mr. Garland, 43, holds a class A commercial driver's license (CDL) in Maine.

James Gooch

Mr. Gooch, 54, holds a class A commercial driver's license (CDL) in Missouri.

Harold Johnson

Mr. Johnson, 62, holds a class A commercial driver's license (CDL) in Pennsylvania.

Michael Paasch

Mr. Paasch, 41, holds a class A commercial driver's license (CDL) in Nebraska.

William Symonds

Mr. Symonds, 56, holds a class B commercial driver's license (CDL) in Illinois.

Anthony Thong

Mr. Thong, 31, holds a class A commercial driver's license (CDL) in California.

Roger Allen Wright

Mr. Wright, 62, holds a class A commercial driver's license (CDL) in Alabama.

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. Based on its review of each driver's record, the Agency has concluded that allowing these applicants to drive only a property-carrying CMV in interstate commerce will achieve an equal level of safety. Each 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 10 CDL holders based on an evaluation of each driver's safety experience. Safety analysis of information relating to these 10 applicants meets the burden of showing that granting the exemptions to allow them to operate only property-carrying CMVs in interstate commerce would achieve a level of safety that is equivalent to or greater than the level that would be achieved without the exemption. As a result of the exemptions, the CMV industry will gain 10 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 the exemption 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 10 drivers for a period of 2 years from the physical qualification standard concerning hearing: Sascha Cotton (FL); Keith C. Drown (ID); Norman Estes (AL); David Garland (ME); James Gooch (MO); Harold Johnson (PA); Michael Paasch (NE); William Symonds (IL); Anthony Thong (CA); and Roger Allen Wright (AL).

Issued on: April 17, 2015.

Larry W. Minor,

Associate Administrator for Policy.

Footnotes

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.