Qualification of Drivers; Application for Exemptions; Hearing |
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Larry W. Minor
Federal Motor Carrier Safety Administration
April 23, 2015
[Federal Register Volume 80, Number 78 (Thursday, April 23, 2015)]
[Notices]
[Pages 22765-22766]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09457]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2013-0126]
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 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, (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 Sec. 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.
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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
On April 2, 2014, FMCSA published a notice of receipt of exemption
applications and requested public comment on 4 individuals. The comment
period ended on May 2, 2014. In response to the notice, FMCSA received
two comments, one from Deb Letney and a late submission received May 5,
from Kristine Thatcher.
Deb Letney acknowledges that crash data does not support an
increased crash risk for hearing impaired drivers and that Oregon
allows hearing impaired drivers to operate in intrastate commerce.
However, she expresses concerns for ``the driver's ability to recognize
activation of warning devices and to communicate with law enforcement
or emergency workers.'' She recommends granting conditional exemptions
requiring visual warning indicators and alternate forms of
communication.
[[Page 22766]]
Kristine Thatcher questions whether a hearing impaired driver is
``as safe or safer in the operation of a CMV than those who are not
hearing-impaired,'' and expresses concerns about recognizing
``mechanical wear or failure'' such as air leaks, pressure changes,
worn brakes, or a hazard warning such as a horn, that are usually
recognized through sound. She expresses concern for the hearing
impaired driver's inability to communicate in an emergency situation,
``especially if passengers or hazardous materials are involved.''
Kristine Thatcher believes that during a skills test ``an examiner's
ability to safely conduct a road test is compromised'' due to the
distraction of alternate forms of communication. She doesn't believe
that using flash cards during a skills test is appropriate because
instruction ``cannot be condensed to one or two word flash cards'' and
that ``CMV road test standards will be compromised.'' She believes that
restrictions should be imposed to include class B only, no air brakes,
automatic transmission only and no hazardous materials, no double/
triple endorsements and no motor coach with passengers.
FMCSA Response: The Agency acknowledges these comments and concerns
regarding testing and the public safety risk of a driver unable to
verbally communicate and to hear warning signals or horns. However,
because FMCSA's 2008 Evidence Report and previous research studies have
not shown a higher safety risk for hearing impaired drivers, there is
no basis for restrictions other than the current restriction of no
operation of motorcoach or bus with passengers. Hearing impaired
drivers routinely compensate for their lack of hearing through other
senses. The concerns regarding testing can be overcome by using
alternate forms of communication such as hand gestures, flash cards,
pen/paper, dry erase board or by using electronic devices.
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, the 4 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 4
applicants should be granted an exemption:
Rodney Braden
Mr. Braden, 48, holds an operator's license in Kentucky.
Arthur Brown
Mr. Brown, 47, holds an operator's license in Kentucky.
Anthony Castile, III
Mr. Castile, 45, holds an operator's license in Pennsylvania.
Michael Steggs
Mr. Steggs, 54, holds a Class A commercial driver's license (CDL)
in Texas.
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 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. 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: Rodney Braden
(KY); Arthur Brown (KY); Anthony Castile, III (PA); and Michael Steggs
(TX).
Issued on: April 17, 2015.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2015-09457 Filed 4-22-15; 8:45 am]
BILLING CODE 4910-EX-P