Qualification of Drivers; Exemption Applications; Hearing

Larry W. Minor
Federal Motor Carrier Safety Administration
28 August 2019

[Federal Register Volume 84, Number 167 (Wednesday, August 28, 2019)]
[Notices]
[Pages 45202-45203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18569]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0138]


Qualification of Drivers; Exemption Applications; Hearing

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition.

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SUMMARY: FMCSA announces its decision to exempt 27 individuals from the 
hearing requirement in the Federal Motor Carrier Safety Regulations 
(FMCSRs) to operate a commercial motor vehicle (CMV) in interstate 
commerce. The exemptions enable these hard of hearing and deaf 
individuals to operate CMVs in interstate commerce.

DATES: The exemptions were applicable on June 17, 2019. The exemptions 
expire on June 17, 2021.

FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, 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 from 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 Docket Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation

A. Viewing Documents and Comments

    To view comments, as well as any documents mentioned in this notice 
as being available in the docket, go to http://www.regulations.gov. 
Insert the docket number, FMCSA-2018-0138 in the keyword box, and click 
``Search.'' Next, click the ``Open Docket Folder'' button and choose 
the document to review. If you do not have access to the internet, you 
may view the docket online by visiting the Docket Management Facility 
in Room W12-140 on the ground floor of the DOT West Building, 1200 New 
Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., ET, 
Monday through Friday, except Federal holidays.

B. 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.

II. Background

    On May 14, 2019, FMCSA published a notice announcing receipt of 
applications from 27 individuals requesting an exemption from the 
hearing requirement in 49 CFR 391.41(b)(11) to operate a CMV in 
interstate commerce and requested comments from the public (84 FR 
21395). The public comment period ended on June 13, 2019, and one 
comment was received.
    FMCSA has evaluated the eligibility of these applicants and 
determined that granting exemptions to these individuals would achieve 
a level of safety equivalent to, or greater than, the level that would 
be achieved by complying with the current regulation 49 CFR 
391.41(b)(11).
    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.
    49 CFR 391.41(b)(11) 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).

III. Discussion of Comments

    FMCSA received one comment in this proceeding. Michael Millard, 
President/CSO AWM Associates, LLC, noted the FMCSA has taken award of 
the hearing exemption too far by awarding it to deaf persons who have 
never operated a CMV. He feels the Agency's decision to issue hearing 
exemptions to non-CDL holders is imposing requirements on motor 
carriers and training academies beyond their control that affect the 
applicant's safety, and feels FMCSA should carefully examine the nature 
of trucking and the applicant's safety before exposing both applicant 
and public to increased safety risk. The Agency previously addressed 
this same concern in response to comments provided by the Commercial 
Vehicle Training Association (CVTA) on December 29, 2017, (82 FR 
61809). For non-CDL holders, the Agency reviews the driving records 
from the State Driver's Licensing Agency (SDLA). The records for each 
applicant who has been granted a hearing exemption demonstrate that the 
driver has a safe driving history. Therefore, the Agency believes that 
these drivers do not pose a risk to public safety and that granting the 
exemption achieves a level of safety that is equivalent to or greater 
than the level that would be achieved absent such exemption. Although 
we acknowledge these concerns, the lack of any technology or 
accommodations that would enable institutions to train hard of hearing 
and deaf drivers is not evidence that FMCSA should no longer grant 
hearing exemptions. In fact, the Agency is aware of several States that 
currently conduct CDL skills testing on hard of hearing and deaf 
drivers, each utilizing different methods. In an effort to make this 
information available to others, FMCSA is working with the AAMVA to 
develop a resource guide for administering the CDL skills test to hard 
of hearing and deaf drivers.

IV. Basis for Exemption Determination

    Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption 
for up to five years 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. The exemption 
allows the applicants to operate CMVs in interstate commerce. FMCSA 
grants exemptions from the FMCSRs for a two-year period to align with 
the maximum duration of a driver's medical certification.
    The Agency's decision regarding these exemption applications is 
based on current medical information and literature, and the 2008 
Evidence Report, ``Executive Summary on Hearing, Vestibular Function 
and

[[Page 45203]]

Commercial Motor Driving Safety.'' 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's 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 Commercial 
Driver's License Information System (CDLIS), for commercial driver's 
license (CDL) holders, and inspections recorded in the Motor Carrier 
Management Information System (MCMIS). For non-CDL holders, the Agency 
reviewed the driving records from the State Driver's Licensing Agency 
(SDLA). Each applicant's record demonstrated a safe driving history. 
Based on an individual assessment of each applicant that focused 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 Agency believes the drivers granted this exemption have 
demonstrated that they do not pose a risk to public safety.
    Consequently, FMCSA finds that in each case exempting these 
applicants from the hearing standard in 49 CFR 391.41(b)(11) is likely 
to achieve a level of safety equal to that existing without the 
exemption.

V. Conditions and Requirements

    The terms and conditions of the exemption are provided to the 
applicants in the exemption document and includes the following: (1) 
Each driver must report any crashes or accidents as defined in 49 CFR 
390.5; (2) each driver must report all citations and convictions for 
disqualifying offenses under 49 CFR part 383 and 49 CFR 391 to FMCSA; 
and (3) each driver is 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.

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 27 exemption applications, FMCSA 
exempts the following drivers from the hearing standard, 49 CFR 
391.41(b)(11), subject to the requirements cited above:

Selwyn Abrahamson, (MN)
Oluwatobim Akinsanya, (NJ)
Dennis J. Ayers, (MD)
Cesare Belardi, (PA)
Robert M. Benner, (OH)
Jubal Carnley, (FL)
Jason M. Clark, (MO)
Erik De Leon, (TX)
Kareem M. Douglas, (OH)
Jacob Gadreault, (MA)
Boris D. Garth, (AL)
Lane Grover, (IN)
Michael S. Haywood, (TX)
David J. Jabubowski, (CA)
Scott W. Lufkin, (NC)
Billie Jo Martinez, (TX)
Steve Martinez, (CO)
Sergio Miramontes, (CA)
Jonathan A. Muhm, (CA)
Karl Ortiz, (MO)
Andreas Shije, (NM)
Mildred A. Smith, (AR)
Joseph Strassburg, (SD)
James Thomason, (MO)
Gerald Wager, Jr. (NC)
Jeremy A. Williamson Sr. (CA)
Matthew Whitehouse, (WA)

    In accordance with 49 U.S.C. 31315, each exemption will be valid 
for two years from the effective date 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.

     Issued on: August 16, 2019.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2019-18569 Filed 8-27-19; 8:45 am]
BILLING CODE 4910-EX-P