Qualification of Drivers; Application for Exemptions; National Association of the Deaf |
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Anne S. Ferro
Federal Motor Carrier Safety Administration
February 1, 2013
[Federal Register Volume 78, Number 22 (Friday, February 1, 2013)]
[Notices]
[Pages 7479-7484]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02266]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2012-0154]
Qualification of Drivers; Application for Exemptions; National
Association of the Deaf
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 40
individuals for exemptions from the Agency's physical qualifications
standard concerning hearing for interstate drivers. The regulation and
the associated advisory criteria published in the Code of Federal
Regulations as the ``Instructions for Performing and Recording Physical
Examinations'' have resulted in numerous drivers being prohibited from
operating CMVs in interstate commerce based on the fact that they are
unable to meet the hearing requirements. 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.
FMCSA grants exemptions that will allow these 40 individuals to operate
CMVs in interstate commerce for a 2-year period. The exemptions preempt
State laws and regulations and may be renewed.
DATES: The exemptions are effective February 1, 2013. The exemptions
expire on February 2, 2015.
FOR FURTHER INFORMATION CONTACT: Elaine M. Papp, Chief, Medical
Programs Division, (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: http://www.regulations.gov.
Docket: For access to the docket to read background documents or
comments, go to http://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: Anyone may search the electronic form of all comments
received into any of DOT's dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, or other
entity). You may review DOT's complete Privacy Act Statement in the
Federal Register (75 FR 82132, December 29, 2010).
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. On May 25, 2012, FMCSA published a notice
requesting public comment on NAD's application for an exemption on
behalf of 45 drivers. 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).
In support of its application for exemptions, the National
Association of the Deaf (NAD), cited and relied on a study requested by
the Agency's Medical Review Board and presented to the Agency in 2008.
The Evidence Report was prepared for the purpose of providing
information regarding the current state of knowledge on hearing and CMV
driver safety.\1\ The NAD maintains that communication in trucking is
no longer hampered by hearing loss because drivers increasingly rely on
smartphones and other technology to communicate with dispatch. The NAD
conducted over 100 hours of interviews with individuals who are deaf
and hard of hearing and reports that deaf drivers face fewer
distractions behind the wheel.
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\1\ Price, N., Tiller, M., Reston, J., & Tregear, S.,
``Executive Summary on Hearing, Vestibular Function and Commercial
Motor Driving Safety,'' presented to FMCSA on August 26, 2008.
Retrieved April 27, 2012, from: http://www.fmcsa.dot.gov/rules-regulations/TOPICS/mep/report/Hearing-Evidence-Report-Final-Executive-Summary-prot.pdf. See the docket for this notice. The full
text of the Evidence Report is available through a link at http://ntl.bts.gov/lib/30000/30400/30459/Hearing_DOT-FMCSA_-_FINAL_8-29-08.pdf. The evidence report also reviewed vestibular disorders,
which are not included in these exemption applications.
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FMCSA grants 40 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,\2\ for CDL holders, and
interstate and intrastate inspections recorded in MCMIS.\3\ The Agency
[[Page 7480]]
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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\2\ 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.
\3\ 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. Exemptions
Following individualized assessments of the exemption applications,
including a review of detailed follow-up information requested from
each applicant, FMCSA grants exemptions from 49 CFR 391.41(b)(11) to 40
individuals. Under current FMCSA regulations, all of the 40 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.
In addition to evaluating the medical status of each applicant,
FMCSA evaluated the crash and violation data for the 40 drivers, some
of whom currently drive a CMV in intrastate commerce. The CDLIS and
MCMIS were searched for crash and violation data on the 40 applicants.
Each applicant's record demonstrated a safe driving history.
FMCSA published a notice announcing the exemption applications and
requested public comment for each of the applicants. A short summary of
the applicants' qualifications follows. A discussion of the comments
received follows in section D of this notice. For those applicants who
were discussed in the previous notice but are not mentioned in this
notice, the Agency will complete the evaluation of those applications
and announce its decision at a later date.
Docket FMCSA-2012-0154
On May 25, 2012, FMCSA published a notice of receipt of exemption
applications and requested public comment on 40 individuals (71 FR
60606; Docket number FMCSA-2012-0154). The comment period ended on July
30, 2012. Five hundred and seventy commenters responded to the Federal
Register notice. A discussion of the comments is presented later in
this document. FMCSA has determined that the following applicants
should be granted an exemption.
David W. Bateman
Mr. Bateman holds a class A commercial driver's license (CDL) from
the state of Minnesota. He has driven intrastate for the past 14 years,
including driving dump trucks and tractor trailer trucks. He would like
to drive tractor trailer trucks in interstate commerce, if he is
granted an exemption.
William B. Britt, Jr.
Mr. Britt holds a class D driver's license from the state of
Tennessee. Class D has a for-hire endorsement that allows a person to
drive vehicles such as limousines and taxis. He operates his personal
vehicle in his job as a repairman. He would like to obtain a CDL and
drive passenger buses, if granted an exemption.
Ernest W. Brown
Mr. Brown holds a class D driver's license from the state of
Kentucky. He would like to obtain a CDL and drive CMVs greater than
26,001 pounds in interstate commerce, if granted an exemption.
Cody J. Campbell
Mr. Campbell holds a class D driver's license from Louisiana. He
currently is a ``light duty driver,'' driving a tractor. He would like
to obtain a CDL and drive heavy equipment such as a dump truck, or rig
truck with a trailer, if granted an exemption.
Tyjuan M. Davis
Mr. Davis holds a class D driver's license from the state of
Florida. His family is in the trucking business and he would like to
obtain a class A CDL and drive tractor trailers in interstate commerce,
if granted an exemption.
Randall R. Doane
Mr. Doane holds a class AM CDL from the state of Texas. He has
logged over 250,000 miles driving trucks in interstate commerce prior
to failing his hearing test recently. He has experience driving double/
triple trailers, tankers and hazardous material transport. He is
currently permitted to drive a CMV in intrastate commerce. He would
like to return to driving CMVs in interstate commerce, if granted an
exemption.
Allen W. Estes
Mr. Estes holds a class B CDL from the state of Louisiana. He has
driven a bus transporting students to and from school since 1990. He
would like to obtain a CDL so that he can transport students to events
outside of Louisiana, if granted an exemption.
Leslie A. Fairbanks
Mr. Fairbanks held a class A CDL driver's license from the state of
Minnesota from 2001 until 2010, when he failed his hearing test. During
that time he drove a variety of tractor trailer trucks in interstate
commerce. He would like to obtain a CDL and return to driving tractor
trailer trucks, if he is granted an exemption.
Edward T. Geariety
Mr. Geariety held a class A CDL from the state of Minnesota from
1996 until 2011, when he failed his hearing test. During that time he
drove large trucks carrying stone from a quarry to customers. He would
like to return to driving CMVs in interstate commerce, if granted an
exemption.
Donald W. Gordon
Mr. Gordon holds a class CM driver's license from the state of
Pennsylvania. He operates a mini-van as an independent contractor
picking up and delivering materials. He would like to obtain a CDL and
drive CMVs for a national carrier, if granted an exemption.
William Edward Haab
Mr. Haab holds a class D driver's license from the state of
Louisiana. He is interested in obtaining a CDL and pursuing a career in
commercial trucking, if granted an exemption.
Charles L. Harper
Mr. Harper holds a driver's license from the state of Washington.
He has driven rental vehicles and a 12-seat van for a group home. He
would like to obtain a CDL and have the opportunity to drive CMVs in
interstate commerce, if granted an exemption.
Cornelio Hernandez
Mr. Hernandez holds a driver's license from the state of
California. He has enrolled in a driving course for a class B CDL, but
was unable to complete it as he did not pass the hearing test. He would
like to obtain a class A or B CDL to pursue work driving CMVs in
interstate commerce driver, if granted an exemption.
Alvin L. Johnson
Mr. Johnson holds a class CM driver's license from the state of
Georgia. He would like to attend driving school to obtain a CDL and
drive CMVs in interstate commerce, if granted an exemption.
Jerry D. Jones
Mr. Jones holds a class C CDL from the state of Texas. He has 7
years' experience driving a variety of forklifts for a construction
company. He would like to pursue opportunities driving CMVs in
interstate commerce, if granted an exemption.
[[Page 7481]]
James E. Karr
Mr. Karr holds a class DM driver's license from the state of
Kentucky. He would like to obtain a CDL and seek employment
opportunities driving CMVs in interstate commerce, if granted an
exemption.
Lorin W. King
Mr. King holds a class D driver's license from the state of
Oklahoma. The class D license permits one to drive regular automobiles
and trucks. He has experience driving single trailer vehicles with
airbrakes. He would like to obtain a CDL and seek employment
opportunities driving CMVs in interstate commerce, if granted an
exemption.
Christopher Kuller
Mr. Kuller holds a class M driver's license from the state of
Indiana. In the past, he held a CDL and hazmat license, and drove in
interstate commerce for 14 years, until he was unable to pass the DOT
hearing test. He would like to obtain a CDL and return to driving CMVs
in interstate commerce, if granted an exemption.
Julio Cesar Medrano
Mr. Medrano holds a driver's license from the state of Washington.
He is currently a student majoring in diesel technology, graduating in
May 2012. Most job descriptions for diesel engine technicians include a
requirement that he holds a CDL, due to the need to pick up and drive
trucks back to the shop for repair. He would like to obtain a CDL and
drive CMVs in interstate commerce, if granted an exemption.
Hal A. Miller
Mr. Miller holds a class C driver's license from the state of Iowa.
A class C allows the operation of vehicles under 26,000 pounds. He has
experience operating a Ryder rental truck and personal farm tractors.
He would like to obtain a CDL and drive CMVs in interstate commerce, if
granted an exemption.
Kathy K. Miller
Ms. Miller holds a class C driver's license from the state of Iowa.
She has experience driving students to and from local activities. She
is limited at work due to her not being able to pass the hearing test
and obtain a DOT medical card. She would like to obtain a CDL and drive
CMVs in interstate commerce, if granted an exemption. She is interested
in career opportunities with package delivery companies.
Brian J. Minch
Mr. Minch holds a driver's license from the state of New Hampshire.
He currently drives super duty pick-up trucks for landscape and
construction companies. He would like to obtain a CDL and drive CMVs in
interstate commerce, if granted an exemption.
Larry J. Moss
Mr. Moss holds a driver's license from the state of California. He
currently works for a delivery and hauling service, driving trucks and
often pulling a trailer. He would like to attend trucking school,
obtain a CDL and drive CMVs in interstate commerce, if granted an
exemption.
Leslie R. O'Rorke
Mr. O'Rorke holds a class D driver's license from the state of
Illinois. He has experience driving super duty pick-up trucks with a
trailer and dump trucks for a tree service company. He would like to
obtain a CDL and drive CMVs in interstate commerce, if granted an
exemption.
Timothy A. Parker
Mr. Parker holds a class C driver's license from the state of
California. The class C license in California allows one to operate a
traditional two-axle vehicle. He has experience operating 18-wheel
trucks as well as forklifts. He would like to obtain a CDL so he can
drive the tractor trailer trucks in interstate commerce, if granted an
exemption.
Gregory M. Potter
Mr. Potter holds a class C driver's license from the state of
Texas. He has experience driving a company van and rental trucks towing
a trailer. He would like to obtain a class A CDL to drive tanker trucks
in interstate commerce, if granted an exemption.
Gerson P. Rameriez
Mr. Rameriez holds a class D driver's license from the state of
Montana. He has experience driving a dump truck towing a trailer. He
also drove a truck for five years while working as a painter. He would
like to obtain a class A CDL and attend a trucking school in Montana,
if granted an exemption.
Jeremy Reams
Mr. Reams holds a class D driver's license from the state of
Kentucky. The class D is valid for any single motor vehicle, and a
trailer with weights not greater than 26,000 pounds. He has experience
driving 24-foot moving trucks, fifth wheel vehicles and has hauled
ATV's for personal use. He would like to obtain a CDL to drive CMVs in
interstate commerce, if granted an exemption.
Robert R. Rotondi
Mr. Rotondi holds a driver's license from the state of South
Carolina. He has experience driving rental trucks and forklifts. He
currently owns a 12-foot trailer he uses to tow his motorcycle. He
would like to obtain a class A or B CDL and drive CMVs in interstate
commerce, if granted an exemption.
Daniel Schoultz
Mr. Schoultz holds a class C driver's license from the state of
Pennsylvania. He has 25 years' experience driving trucks, but he is
currently not able to pass the DOT hearing test. He would like to
obtain a CDL again and drive CMVs in interstate commerce, if granted an
exemption.
Stanley W. Shields
Mr. Shields holds a class D driver's license from the state of
Kentucky. He would like to obtain a CDL and to seek employment
opportunities as a CMV driver, if granted an exemption.
James M. Skinner
Mr. Skinner holds a driver's license from the state of Florida that
allows him to drive any non-commercial vehicle less than 26,001 pounds.
He has experience driving rental trucks and towing rental trailers. He
would like to obtain a class A CDL and drive an interstate tractor
trailer weighing over 26,001 pounds with airbrakes, if granted an
exemption.
Ronald J. Taylor
Mr. Taylor holds a class C driver's license from the state of
Texas. He is currently a student, but would like to seek opportunities
in driving. He would like to obtain a CDL to drive CMVs in interstate
commerce, if granted an exemption.
Justin J. Trethewey
Mr. Trethewey holds a class C chauffeur license from the state of
Michigan. He is starting his own transit business after working as a
chauffeur. He would like to obtain a CDL and tow a gooseneck trailer to
transport cars, recreational vehicles or small trailers, if granted an
exemption.
Gilbert J. Valdez
Mr. Valdez holds a driver's license from the state of Rhode Island.
He currently works part-time and would like to obtain a CDL to seek
employment opportunities driving CMVs in interstate commerce, if
granted an exemption.
[[Page 7482]]
Mark L. Valimont
Mr. Valimont holds a class C driver's license from the state of
Texas. He is currently a package handler. He has 13 years' experience
driving dump trucks and three years' experience driving a tractor. He
would like to obtain a CDL and drive CMVs in interstate commerce, if
granted an exemption.
Kevin C. Willis
Mr. Willis holds a class C driver's license from the state of
California. He has held a FAA Private Pilot Certificate since 2006 and
flies private planes that weigh up to 12,500 pounds. He would like to
obtain a CDL and pursue employment opportunities in the commercial
transportation business, if granted an exemption.
James R. Wilson
Mr. Wilson holds a class C driver's license from the state of
Georgia. He has experience driving forklifts and a super duty pickup
truck for a private employer. He would like to obtain a CDL and drive
CMV's in interstate commerce, if granted an exemption.
Holly Cameron Wright, Jr.
Mr. Wright holds a class C driver's license from the state of North
Carolina. He has experience driving forklifts and commercial vehicles
at his family-owned business site. He would like to obtain a CDL and
drive CMVs in interstate commerce, if granted an exemption.
D. Comments
In response to the notice, FMCSA received 570 comments.
Granting the Exemptions on a Trial Basis
The American Trucking Associations (ATA) acknowledged the growing
need in the industry for drivers and the difficulty in finding
qualified drivers. Given this information, ``ATA believes that it is in
the best interest of the FMCSA, the trucking industry, society and
highway safety to grant the requested exemptions, with the following
stipulations:
(a) Granting exemptions to these 40 drivers would be viewed as a
temporary, single instance measure, until the proposed study was
completed;
(b) In granting the exemptions, FMCSA should compel the applicants
to participate in a study about safety performance, and
(c) If the study indicates that the drivers perform safely, that
FMCSA should initiate rulemaking to change the current standard.
FMCSA Response: FMCSA notes that the ATA is interested in having
more qualified drivers who would otherwise not be qualified due to
their hearing impairment. However, FMCSA does not plan to implement the
ATA proposal. FMCSA does not believe it would be beneficial to future
applicants to restrict exemptions to a two-year, non-renewable process
as part of a proposed new program. The FMCSA's 2008 Evidence Report
found no increase in crash risk among hearing impaired drivers, and the
Agency believes that additional studies could simply delay drivers
receiving a CDL and prove costly to the government without providing
meaningful additional safety to the driving public.
No Ad hoc Exemptions
The Advocates for Highway and Auto Safety (Advocates) stated that
they ``suggest it is time for FMCSA to engage the process to revise the
standards rather than short-circuit those procedures in order to grant
ad hoc exemptions.'' They further state their concern that the only
scientific evidence presented was in connection with the FMCSA Hearing
Evidence Report. They state that the 2008 Evidence Report is not a
research study, but rather a review and evaluation of several prior
studies related to hearing and drivers.
FMCSA Response: The Agency does not believe a new scientific study
is necessary to make a determination concerning the exemption
applications. The 2008 Evidence Report found that previous studies by
various researchers did not provide evidence to support the contention
that individuals with hearing deficits are at an increased risk for a
motor vehicle crash. And there is no basis for concluding that a new
study would yield different results. Also, a number of States allow
hearing impaired CMV drivers. In fact, several of the drivers discussed
in this notice already have experience as CMV drivers. Based on the
available literature, and the safe driving experience of these
individuals, the Agency believes granting the exemption is appropriate.
FMCSA evaluates each driver on a case-by-case basis and also
investigates the past driving/violation record to ensure an acceptable
level of safety.
While the Agency appreciates Advocates' suggestion that the Agency
should revise the standards rather than grant ad hoc exemptions, the
rulemaking process is too lengthy to afford relief to the individuals
affected here. With no specific data to show that hearing impaired or
deaf drivers are a danger to the driving public, granting these
exemptions will provide an opportunity to drivers to enter the trucking
industry or further pursue driving careers.
FMCSA has received a petition for rulemaking from NAD formally
requesting that the Agency eliminate the hearing standard under 49 CFR
Part 391. A copy of the petition, submitted in accordance with 49 CFR
part 389 (Rulemaking Procedures--Federal Motor Carrier Safety
Regulations) has been placed in the docket referenced at the beginning
of this notice. The Agency will consider NAD's petition in accordance
with the rules under 49 CFR part 389 and issue a decision on the matter
at a later date. If the Agency grants the petition, it would initiate a
rulemaking seeking public comment on proposed changes to the
regulations.
Concerns About Exemptions for Bus Drivers With Passengers
The American Bus Association (ABA) submitted comments stating their
concerns regarding allowing hearing impaired or deaf drivers to drive
buses with passengers. They stated ``The ABA's opposition to the NAD's
application is bottomed on the tasks a CMV motorcoach driver must
fulfill while responsible for up to fifty-five passengers in a
motorcoach.'' They further state:
``While it may be true, as NAD contends, that technology may keep
hearing impaired drivers from being `hampered' by the loss of
hearing, that rationale cannot apply when a CMV driver is
transporting passengers. For CMV motorcoach drivers piloting the
vehicle is only a part of the driver's duties. Drivers with a `P'
endorsement may be required to interact with passengers in any
number of ways that requires the driver to successfully pass the
hearing requirement in 49 CFR 391.''
They oppose the application for exemption to the extent that the
exemption would allow any of the 40 applicants to obtain a CDL with a
passenger endorsement or in any way qualify them to operate a
motorcoach in interstate commerce.
FMCSA Response: The Agency acknowledges ABA's concerns about the
need for motorcoach drivers to communicate with the passengers in the
event of an emergency. Motorcoach drivers are responsible for the
safety of passengers and that the driver must be able to hear any sign
of passenger distress. Therefore, the terms and conditions for the
exemptions would not allow the hearing impaired drivers to operate a
motorcoach with passengers in interstate commerce.
[[Page 7483]]
Not Safe for the Driving Public To Grant These Exemptions
The Agency received an additional nine comments from private
citizens and advocacy groups expressing their concern and asking FMCSA
not to grant these exemptions. All of the these comments simply
expressed that in their opinion they felt it was a safety issue, and
they asked FMCSA not to grant any of the 40 exemptions.
FMCSA Response: The Agency acknowledges these comments and their
concerns. However, as previously stated there is no specific scientific
data to show that hearing impaired drivers are a higher safety risk
than other drivers. Also, several States already allow hearing impaired
individuals to operate commercial vehicles in intrastate commerce and
most, if not all States allow such individuals to operate passenger
cars.
Support for Applicants and the Exemptions
The FMCSA received 505 comments from individuals in support of the
exemption applications. Most of them stated that the applicants should
``be granted unrestricted exemptions from the hearing requirements''
and cited evidence from the FMCSA's 2008 Executive Study of the hearing
requirement and that it shows there is not an increase in crash risk
for hearing impaired drivers. The letter also states that they strongly
feel these deaf drivers should be able to drive any type of vehicle.
Some of the commenters stated that they would like FMCSA to allow
all drivers with hearing impairment to be able to obtain a CDL. They
state that with modern technology, such drivers can communicate without
difficulty.
A number of the comments stated that they believed FMCSA was
discriminating against deaf drivers by prohibiting them from working in
the trucking industry. Others stated that they thought that hearing
impaired drivers were safer drivers and not going to be distracted by
conversations, cell phones and radio noise. Others stated that with
modern technology, there was not a hearing requirement in their
opinion. Additionally, there were comments that other countries allow
hearing impaired drivers to operate CMVs and that some States offer a
waiver to hearing impaired drivers for intrastate driving.
The FMCSA also received an additional 43 comments in support of
these exemptions from advocacy groups. These included comments from:
the Nebraska Commission for the Deaf and Hard of Hearing; Regional
Center for Independent Living; First People of GA; and the Commonwealth
of Massachusetts, Department of Mental Health. All stated their belief
that granting these exemptions is the right thing to do at this time.
In addition, the Agency received a comment of support from the
National Association of the Deaf, the organization that submitted the
application on behalf of the drivers. NAD stated that it
``unequivocally supports the granting of a full exemption to each of
the 45 drivers.'' They have a concern regarding the validity of the
``forced whisper test'' to assess hearing and cite FMCSA's 2008
Evidence Report. They state that the report raised questions about the
validity of the same test. They also called for the removal of the
hearing requirement altogether from FMCSA's physical qualification
standards.
The U.S. Equal Employment Opportunity Commission (EEOC) believes
granting the exemptions would be consistent with the Americans with
Disabilities Act (ADA). EEOC ``urges FMCSA to give due consideration to
the results of the 2008 hearing loss study as it represents current and
objective evidence that will help the agency determine whether a driver
who cannot meet the hearing standard should be permitted to operate a
CMV in interstate commerce.'' They further urged the Agency to adopt a
flexible and comprehensive approach to be able to obtain a CDL.
Deaf Truckers United stated that drivers who are hearing impaired
rely on their other heightened senses such as vision and touch. They
state that these drivers are more keenly aware of these senses and that
they are able to pick up things that hearing drivers miss. They also
ask that the hearing requirement be removed from 49 CFR Part 391.
FMCSA Response: FMCSA acknowledges support for these exemptions.
The Agency carefully reviewed all the comments about every individual.
As stated above, the rulemaking process is too lengthy to afford relief
to the individuals affected here. FMCSA has received a petition for
rulemaking from NAD formally requesting that the Agency eliminate the
hearing standard under 49 CFR Part 391. The Agency will consider the
petition in accordance with the rules under 49 CFR Part 389, and issue
a decision on the matter at a later date. If the Agency grants the
petition, it would initiate a rulemaking seeking public comment on
proposed changes to the regulations.
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.
The 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 part 391.
Conclusion
The Agency is granting exemptions from the hearing standard, 49 CFR
391.41(b)(11), to 40 individuals based on a thorough evaluation of each
driver's qualifications, safety experience, and medical condition.
Safety analysis of information relating to these 40 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 40 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 40 drivers for a period of 2 years with
annual medical certification required: David W. Bateman (MN); William
B. Britt (TN); David W. Brown (ME); Ernest W. Brown (KY); Cody J.
Campbell (IA); Tyjuan M. Davis (FL); Randall R. Doane (TX); Allan W.
Estes (LA); Leslie A. Fairbanks (MN); Edward T. Geariety (NY); Donald
W. Gordon (PA); William Edward Haab (LA); Charles L. Harper (WA);
Cornelio E. Hernandez (CA); Alvin Leo Johnson (GA); Jerry D. Jones
[[Page 7484]]
(TX); James Karr (KY); Christopher Kuller (PA); Lorin W. King (OK);
Julio Cesar Medrano (WA); Hal A. Miller (IA); Kathy K. Miller (IA);
Brian I. Minch (NH); Larry J. Moss (CA);Lesley R. O'Rorke (IL); Timothy
A. Parker (CA); Gregory M. Potter (TX); Gerson P. Ramirez (MT); Jeremy
Reams (KY); Robert R. Rotondi (SC); Daniel Schoultz (PA); Stanley W.
Shields (KY); James M. Skinner (FL); Ronald J. Taylor (TX); Justin J.
Trehtewey (MI); Gilbert Valdez (RI); Mark L. Valimont (TX); Kevin C.
Wllis (CA); James R. Wilson (GA); Holly Cameron Wright Jr. (NC) from
the prohibition of CMV operations by persons with who do not meet the
hearing requirement. If the exemption is still in effect at the end of
the 2-year period, the person may apply to FMCSA for a renewal under
procedures in effect at that time.
Issued on: January 29, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-02266 Filed 1-30-13; 4:15 pm]
BILLING CODE 4910-EX-P