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Qualification of Drivers; Application for Exemptions; Hearing

American Government Special Collections Reference Desk

American Government

Qualification of Drivers; Application for Exemptions; Hearing

Larry W. Minor
Federal Motor Carrier Safety Administration
April 23, 2015


[Federal Register Volume 80, Number 78 (Thursday, April 23, 2015)]
[Notices]
[Pages 22772-22773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09453]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2012-0154; FMCSA-2012-0332]


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 individuals who do not meet the standard from 
operating CMVs in interstate commerce. After notice and opportunity for 
public comment, the Agency concluded that granting exemptions for these 
CMV drivers 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 peiod 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, 
fmcsamedical@dot.gov, 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 the regulatory 
requirement in Sec.  391.41(b)(11) allowing individuals who do not meet 
the hearing requirements to operate 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 the 
applicant's driving record found in the CDLIS,\1\ for CDL holders, and 
interstate and intrastate inspections recorded in MCMIS.\2\ The Agency 
acknowledges there could be potential consequences of a driver being 
hearing impaired and/or deaf while operating a CMV under some 
scenarios. However, 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

    FMCSA announced the exemption applications and requested public 
comment for each of the applicants in the notices below. For those 
applicants discussed in a previous notice but who are not mentioned in 
this notice, the Agency has announced its decision in a previous 
notice.

Docket # FMCSA-2012-0154

    On May 25, 2012, FMCSA published a notice of receipt of exemption 
applications and requested public comment on 45 individuals. The 
comment period ended on July 30, 2012. This application was in response 
to a request from the National Association of the Deaf (NAD). In 
response to this notice, FMCSA received 570 comments and granted 40 
exemptions. The 570 comments were addressed in the Agency's notice 
published on February 1, 2013 (78 FR 7479).

Docket # FMCSA-2012-0332

    On July 16, 2013, FMCSA published a notice of receipt of exemption 
applications and requested public comment on 9 individuals. The comment 
period ended on August 15, 2013. In response to the notice, FMCSA 
received seven comments. All seven commenters support the idea of 
granting exemptions.

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, all of the 4 drivers receiving 
exemptions from 49 CFR 391.41(b)(11) would have been

[[Page 22773]]

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.

Donald Lynch

    Mr. Lynch, 38, holds a driver's license from the state of Florida.

Zachary Rietz

    Mr. Rietz, 32, holds a driver's license from the state of Texas.

Bryon Smith

    Mr. Smith, 28, holds a driver's license from the state of 
Louisiana.

Billy J. Warnock

    Mr. Warnock, 43, holds a driver's license from the state of 
Indiana.

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 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 40 CFR part 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. By granting the 
exemptions, the CMV industry will gain 4 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 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: Donald Lynch 
(FL); Zachary Rietz (TX); Byron Smith (LA); and Billy J. Warnock (IN).

    Issued on: April 17, 2015.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2015-09453 Filed 4-22-15; 8:45 am]
 BILLING CODE 4910-EX-P

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