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Qualification of Drivers; Exemption Applications; Hearing Publication: Federal Register Agency: Federal Motor Carrier Safety Administration Byline: Larry W. Minor Date: 24 January 2023 Subjects: American Government  , Driver Licensing
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[Federal Register Volume 88, Number 15 (Tuesday, January 24, 2023)]
[Notices]
[Pages 4283-4286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01261]
[[Page 4283]]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket Nos. FMCSA-2012-0332; FMCSA-2013-0122; FMCSA-2013-0123; FMCSA-
2013-0124; FMCSA-2015-0326; FMCSA-2015-0328; FMCSA-2015-0329; FMCSA-
2016-0004; FMCSA-2017-0058; FMCSA-2017-0059; FMCSA-2017-0060; FMCSA-
2017-0061; FMCSA-2018-0135; FMCSA-2018-0138]
Qualification of Drivers; Exemption Applications; Hearing
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of final disposition.
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SUMMARY: FMCSA announces its decision to renew exemptions for 24
individuals from the hearing requirement in the Federal Motor Carrier
Safety Regulations (FMCSRs) for interstate commercial motor vehicle
(CMV) drivers. The exemptions enable these hard of hearing and deaf
individuals to continue to operate CMVs in interstate commerce.
DATES: The exemptions were applicable on August 22, 2022. The
exemptions expire on August 22, 2024.
FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief,
Medical Programs Division, FMCSA, DOT, 1200 New Jersey Avenue SE, Room
W64-224, Washington, DC 20590-0001, (202) 366-4001,
fmcsamedical@dot.gov. 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 Dockets
Operations, (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation
A. Viewing Comments
To view comments go to www.regulations.gov. Insert the docket
number (FMCSA-2012-0332, FMCSA-2013-0122, FMCSA-2013-0123, FMCSA-2013-
0124, FMCSA-2015-0326, FMCSA-2015-0328, FMCSA-2015-0329, FMCSA-2016-
0004, FMCSA-2017-0058, FMCSA-2017-0059, FMCSA-2017-0060, FMCSA-2017-
0061, FMCSA-2018-0135, or FMCSA-2018-0138) in the keyword box, and
click ``Search.'' Next, sort the results by ``Posted (Newer-Older),''
choose the notice posted August 17, 2022, and click ``Browse
Comments.'' If you do not have access to the internet, you may view the
docket online by visiting Dockets Operations in Room W12-140 on the
ground floor of the DOT West Building, 1200 New Jersey Avenue SE,
Washington, DC 20590-0001, between 9 a.m. and 5 p.m. ET Monday through
Friday, except Federal holidays. To be sure someone is there to help
you, please call (202) 366-9317 or (202) 366-9826 before visiting
Dockets Operations.
B. Privacy Act
In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments
from the public on the exemption requests. 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--Federal Docket Management System (FDMS), which can
be reviewed at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices, the comments are searchable by the
name of the submitter.
II. Background
On August 17, 2022, FMCSA published a notice announcing its
decision to renew exemptions for 24 individuals from the hearing
standard in 49 CFR 391.41(b)(11) to operate a CMV in interstate
commerce and requested comments from the public (87 FR 50688). The
public comment period ended on September 16, 2022, and four unique
comments were received.
FMCSA has evaluated the eligibility of these applicants, evaluated
the comments received, and determined that renewing these exemptions
would likely achieve a level of safety equivalent to, or greater than,
the level that would be achieved by complying with Sec. 391.41(b)(11).
The physical qualification standard for drivers regarding hearing
found in Sec. 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.
This standard was adopted in 1970 and was revised in 1971 to allow
drivers to be qualified under this standard while wearing a hearing aid
(35 FR 6458, 6463 (Apr. 22, 1970) and 36 FR 12857 (July 8, 1971),
respectively).
III. Discussion of Comments
Summary of Comments
FMCSA received four unique comments in these consolidated
proceedings. One is from United Parcel Service, Inc. (UPS) in
opposition to FMCSA's decision to renew a hearing exemption for Mr.
Quinton Murphy, an employee.\1\ Because Mr. Murphy was not able to meet
FMCSA's hearing standard, he was unable to obtain a Medical Examiner's
Certificate, making him not physically qualified for any driving of a
CMV with UPS. In 2014, Mr. Murphy applied for a Federal hearing
exemption and was issued one in 2015. Mr. Murphy has since renewed his
hearing exemption multiple times. Mr. Murphy applied for driving
positions at UPS and UPS allowed him to take the preliminary road test
that applicants must pass before starting driver training. According to
UPS, Mr. Murphy failed that test on five different occasions between
2014 and 2018. UPS then adopted a policy in 2019 providing it would not
accept the Medical Examiner's Certificates that must be accompanied by
hearing exemptions. UPS states that ``anything less than the hearing
requirement set forth in the Safety Regulations would amount to an
unacceptable experiment with safety and would conflict with the
company's own high safety and training standards.'' At that time, Mr.
Murphy had another pending application for a driving position. UPS
denied that application because Mr. Murphy could not obtain a Medical
Examiner's Certificate without a hearing exemption. UPS contends that
``FMCSA has not made the statutorily required safety findings to
support the granting of a renewed exemption to Mr. Murphy.''
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\1\ The UPS comment is available at https://www.regulations.gov/comment/FMCSA-2013-0124-0031.
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UPS' position is that: ``The grant of another categorical hearing
exemption to Mr. Murphy poses a serious safety risk and, given the lack
of evidence to support a finding that an exemption will maintain or
improve safety, would be inconsistent with federal law.'' UPS
supplemented its comment with 15 exhibits to support its opposition to
renewing Mr. Murphy's hearing exemption and to oppose the overall basis
for the exemptions.
According to UPS, ``FMCSA opaquely asserts'' that each applicant
included in the August 17, 2022 notice has satisfied the renewal
conditions for obtaining an exemption, but does not specify the renewal
conditions. UPS questions the use of driving records relating to
[[Page 4284]]
personal vehicles for applicants for a hearing exemption. It asserts
that FMCSA's consideration of such driving records when issuing
exemptions is not a reliable proxy for assessing an individual's
ability to operate a CMV safely.
UPS states that Mr. Murphy is completely deaf and has limited
ability to read or communicate in English. UPS continues that Mr.
Murphy is unable to participate in critical on-road training that
involves real-time communication while driving.
UPS provides that ``FMCSA's decision to issue an exemption on such
a scant evidentiary record with so little reasoning is arbitrary and
capricious. And by issuing a renewed exemption before providing an
opportunity for public comment, FMCSA has only compounded these
problems. The agency has made a significant safety determination that
is not provided for by statute before considering outside evidence [. .
.] regarding the safety risks posed by Mr. Murphy. Such absence of
evidence is insufficient for an affirmative safety finding'' (original
italics). It also provides a lengthy discussion regarding an evidence
report titled ``Hearing, Vestibular Function, and Commercial Motor
Driving Safety'' that was presented to FMCSA in August 2008 and other
literature. UPS states that the 2008 report did not find any
affirmative evidence supporting the grant of exemptions to non-hearing
individuals and that FMCSA failed to identify other current medical
literature used to support its decision to grant these exemptions.
UPS indicates that FMCSA has not addressed a 2016 study that UPS
states reports ``that drivers with hearing loss are up to 3.1 times
more likely to be involved in an accident and 10 times more likely to
be injured.'' \2\ It also states that ``FMCSA has never acknowledged or
addressed a recent analysis of its hearing-exemption program undertaken
at the agency's own behest that confirms the absence of empirical
support for the agency's position.'' UPS contends that the 2020 study
found no statistically significant evidence that CMV operators with
profound hearing loss are equally as safe as those who meet FMCSA's
standard. It states that ``despite the research demonstrating the vital
link between hearing and safety, and despite the absence of any current
data calling that link into doubt, FMCSA has chosen to press forward
granting exemptions without further empirical inquiry. It has elected
not to commission a further study to assess whether exempting non-
hearing drivers from the Safety Regulations' standards is likely to
achieve the same or a greater level of safety.'' UPS asserts that
``FMCSA's track record of reflexively granting one-size-fits-all
hearing exemptions to all who seek them is particularly concerning and
demonstrates a lack of rigor in conducting the review the statute
mandates and applying the safety-first standard Congress prescribed.''
UPS suggests the need for further research and states that ``FMCSA's
decision to issue exemptions to individuals like Mr. Murphy is both
unreasonable and inconsistent with FMCSA's statutory mandates.'' UPS
concludes that Mr. Murphy's exemption is improper and must be
rescinded.
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\2\ See UPS comment at 14, citing Gordon M. and Pearson J.,
Preliminary Analysis of Roadway Accidents Rates for Deaf and Hard-
of-Hearing Drivers--Forensic Engineering Application, 33 J. Nat'l
Academy of Forensic Eng'rs 47 (2016).
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An anonymous comment was submitted that does not support granting a
hearing exemption to Mr. James Queen.\3\ The commenter states that Mr.
Queen ``has extra health issues that could not show on his medical
card.'' The commenter requests that FMCSA review Mr. Queen's medical
care and reports before granting him an exemption.
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\3\ This comment was submitted in multiple dockets in this
proceeding, see, e.g., https://www.regulations.gov/comment/FMCSA-2017-0059-0020.
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The Commercial Vehicle Training Association (CVTA) also submitted
comments in these proceedings.\4\ CVTA does not address the merits of
any individual renewal application. Instead, CVTA states that ``without
a comprehensive understanding of the Agency's reasoning behind
providing certain exemptions and additional research on the subject,
our members are not able to provide a consistent standard without
sacrificing safety or opening themselves up to liability.''
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\4\ CVTA's comment was submitted in multiple dockets in this
proceeding, see e.g., https://www.regulations.gov/comment/FMCSA-2013-0122-0022.
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CVTA also states ``that not enough research has been made available
to the public on this matter and the Agency has not been transparent
with their standards of how exemptions are granted or extended.'' It
requests additional research, public data, and guidance on this matter.
CVTA says that the Agency vaguely asserted that recent decisions to
renew some exemptions ``were based `on their merits.' '' CVTA continues
that in ``order for an agency's assessment to not run afoul of the
`arbitrary and capricious' standard for judicial review set forth by
the Administrative Procedure Act (APA), the Agency must engage in
reasoned decision making by examining the relevant data and
articulating a satisfactory explanation for its action. Further, there
must be a rational connection between the facts found and the choice
made. CVTA does not believe that FMCSA has satisfied this standard.''
CVTA also states that ``FMCSA provided little to no relevant data
other than noting that they `searched for crash and violation data' and
`driving records from the State Driver's Licensing Agency' when making
the decision.'' CVTA continues that it understood this database has
never been a factor in determining whether a hearing-impaired
commercial driver's license (CDL) driver meets the medical fitness
examination required by the FMSCRs to operate a CMV. CVTA states that
the ``Agency did not articulate a satisfactory explanation of why this
data was relevant when determining if this exemption would likely
achieve a level of safety that is equivalent to, or greater than, the
level that would be achieved absent such exemption.''
In addition, CVTA states that it ``does not feel the statutory
requirements have been met by the extension of these exemptions, there
has been a lack of transparency in the decision making, and the
regulation has not been articulated in a way that can produce a
reliable and consistent standard our members can rely on when making
accommodations.'' Finally, CVTA states it ``cannot support this rule
without additional research, data, and an articulated explanation on
the subject that can be consistently employed throughout the
industry.''
An anonymous comment was submitted opposing CVTA's comments.\5\ The
commenter states that FMCSA's search for crash and violation data and
driving records proves that there were few or no crashes reported.
According to the commenter, that also proves that passing FMCSA's
hearing test is not required to operate a CMV and that the drivers who
applied for an exemption are safe drivers.
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\5\ This comment was submitted in multiple dockets in this
proceeding, see, e.g., https://www.regulations.gov/comment/FMCSA-2017-0059-0018.
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FMCSA Response to Comments
The Agency's decision regarding exemption applications is based on
relevant medical information and literature indicating whether a
licensed driver with the medical condition could operate safely, which
includes the specific bases discussed in a December
[[Page 4285]]
29, 2017 Federal Register notice (82 FR 61809). FMCSA also considers
its experience with hearing exemption holders.
FMCSA supports a decision to grant a hearing exemption by reviewing
each applicant's driving record found in the Commercial Driver's
License Information System, for CDL holders, as well as inspections
recorded in the Motor Carrier Management Information System. For non-
CDL holders, the Agency reviews the driving records from the State
Driver's Licensing Agency. The records for each applicant who has been
granted a hearing exemption demonstrate that the driver has a safe
driving history.
FMCSA has found that review of driving records relating to personal
vehicles is suitable to predict future driving performance in CMVs for
the purpose of evaluating hearing exemption applications. In some
instances that is the only driving experience available to the Agency.
Applicants applying for hearing exemptions are very diverse in that
some have been deaf or hard of hearing since birth, some suddenly
became deaf or hard of hearing due to trauma or a medical condition,
and others gradually became deaf or hard of hearing. Some applicants
have experience operating CMVs prior to failing to meet FMCSA's hearing
standard. However, if FMCSA does not consider experience driving
personal vehicles, some applicants would be categorically excluded from
exemption eligibility and the opportunity to drive a CMV. FMCSA has
found from experience that certain drivers who are deaf or hard of
hearing and do not have prior CMV driving experience are capable of
operating CMVs safely.
The information obtained from each applicant's driving record
provides the Agency with details regarding any moving violations or
reported crash data, which demonstrates whether the driver has a safe
driving history and is used as an indicator of future driving
performance. This information assists the Agency in determining whether
these drivers pose a risk to public safety and if granting these
exemptions would likely achieve a level of safety that is equivalent
to, or greater than, the level that would be achieved absent such
exemption. The driving record is reviewed again when a renewal
application is received. The driving record of an applicant for
exemption is useful evidence for consideration in the overall process
of determining whether to grant an exemption.
FMCSA is not aware of any persuasive data to support the contention
that drivers who are deaf or hard of hearing are at an increased crash
risk. UPS cited a 2016 study by Gordon and Pearson and stated that
hard-of-hearing drivers are up to 3.1 times more likely to be involved
in an accident. However, the study's own authors ``recognized that the
data sets did not completely address [deaf and hard-of-hearing] drivers
in a robust manner, and further data mining may lead to differing
results.'' \6\ FMCSA notes that the study has further limitations
because the data only reflect crash involvement and not crash fault. In
addition, the crashes occurred while driving on a college campus, which
may not reflect driving on the whole or may include more younger
drivers, who typically have higher crash rates. With respect to the
2020 study by Hickman et al.,\7\ UPS mischaracterized the study as an
``analysis of [FMCSA's] hearing-exemption program.'' \8\ The study was
not such an analysis. The report provides, ``[o]nly 72 drivers (0.5
percent) failed the hearing exam. Waiver information for driver
exemptions for the hearing standard are not reflected in these
results.'' \9\ Furthermore, the results related to the driver meeting
or failing to meet FMCSA's hearing standard were not statistically
significant; therefore, no conclusions can be drawn regarding the
hearing standard as it relates to safety.\10\
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\6\ Gordon and Pearson at 51.
\7\ Hickman J, Mabry J, Marburg L, Guo F, Huiying M, Hanowski R,
Whiteman J, and Herbert W., Commercial Driver Safety Risk Factors
(Report No. FMCSA-RRR-17-014), Washington, DC: FMCSA 2020, available
at https://rosap.ntl.bts.gov/view/dot/49620 (last accessed Dec. 12,
2022).
\8\ UPS comment at 14.
\9\ Hickman et al. at 40.
\10\ Id. Tables 106 and 108 at 126 and 128.
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FMCSA also does not accept the efforts by the commenters to offer a
broad objection to all exemptions to the hearing standard in Sec.
391.41(b)(11). As explained above, FMCSA finds that there is sufficient
evidence to support a finding that such exemptions generally satisfy
the statutory standard in 49 U.S.C. 31315(b)(1). The Agency is not
engaging in an experiment with safety; rather, the Agency is exercising
the discretion provided by Congress to grant exemptions. Moreover, the
Agency's decision to exercise its discretion and grant the exemptions
is not arbitrary or capricious. Therefore, the Agency will continue to
consider each application for a hearing exemption on an individual
basis and will continue exempting those drivers who do not pose a risk
to public safety when granting the exemption would likely achieve a
level of safety that is equivalent to, or greater than, the level that
would be achieved absent such exemption.
UPS stated that it has adopted a policy that it will not accept the
Medical Examiner's Certificates that must be accompanied by hearing
exemptions. FMCSA recognizes that the FMCSRs provide in Sec. 390.3T(d)
that nothing in 49 CFR parts 350 through 399 is to be construed to
prohibit an employer, such as UPS, from requiring and enforcing more
stringent requirements relating to safety of operation and employee
safety and health.
CVTA in essence is renewing the global comments relating to the
standards and bases FMCSA uses in determining whether to grant
exemptions from the hearing standards that it provided on October 21,
2015 in response to a Federal Register notice announcing applications
for exemptions from the hearing requirement in the FMCSRs. FMCSA has
already responded to and addressed those comments in a Federal Register
notice published on December 29, 2017 (82 FR 61809). FMCSA has no basis
for reconsidering its treatment of the matters raised previously by
CVTA.
FMCSA acknowledges CVTA's concerns about the challenges driver
training schools may experience delivering services for hearing
impaired drivers. In granting these exemptions, however, FMCSA focuses
on whether these individuals are physically able to safely operate a
CMV in interstate commerce. Matters concerning the training of deaf or
hard of hearing individuals to operate CMVs are beyond the scope of the
medical exemptions being granted and are not evidence that FMCSA should
no longer grant exemptions from its hearing standard. FMCSA notes there
are CDL training schools that have successfully trained deaf and hard
of hearing drivers and State driver's licensing agencies have found
ways to conduct CDL skills tests for such individuals. FMCSA believes
that it is not necessary for FMCSA to ``provide a consistent standard''
for training and testing activities when considering an application for
an exemption from the hearing standard.
As indicated above, the focus in these consolidated proceedings is
to determine whether to renew exemptions from FMCSA's hearing standard
for the applicants. Therefore, it is not necessary for FMCSA to address
other driver qualification requirements in this proceeding. Those
requirements are addressed by other provisions of the FMCSRs and not by
the physical qualification standards.
[[Page 4286]]
FMCSA does not find any of the evidence or contentions presented by
UPS persuasive enough to cause it to rescind Mr. Murphy's exemption. It
also finds that CVTA's concerns about the supposed difficulties of
training CDL drivers with a hearing exemption do not warrant denying
any of the renewal applications for such exemptions. Finally, there is
a basis to renew Mr. Queen's exemption because he has been examined by
a medical examiner and found to satisfy FMCSA's physical qualification
standards, except for the hearing standard.
IV. Conclusion
Based upon its evaluation of the 24 renewal exemption applications,
FMCSA announces its decision to exempt the following drivers from the
hearing requirements in Sec. 391.41(b)(11).
As of August 22, 2022, and in accordance with 49 U.S.C. 31136(e)
and 31315(b), the following 24 individuals have satisfied the renewal
conditions for obtaining an exemption from the hearing requirement in
the FMCSRs for interstate CMV drivers:
Mataio Brown (MS)
Robert Burnett (AZ)
Barry Carpenter (SD)
Lyle Eash (VA)
Buddy Gann (IN)
Jeremy Lampard (SC)
Michael McCarthy (MN)
Quinton Murphy (WI)
Michael Murrah (GA)
Karl Ortiz (MO)
Christopher Poole (OH)
Ricardo Porras-Payan (TX)
Kelly Pulvermacher (WI)
James Queen (FL)
James Redmond (IL)
Willine Smith (GA)
Brandon Soto (MO)
Darren Talley (NC)
Michael Tayman (ME)
Carlos Torres (FL)
Joshua Weaver (GA)
James Weir (AZ)
Joseph Woodle (KY)
Paul Wentworth (WA)
The drivers were included in docket numbers FMCSA-2012-0332, FMCSA-
2013-0122, FMCSA-2013-0123, FMCSA-2013-0124, FMCSA-2015-0326, FMCSA-
2015-0328, FMCSA-2015-0329, FMCSA-2016-0004, FMCSA-2017-0058, FMCSA-
2017-0059, FMCSA-2017-0060, FMCSA-2017-0061, FMCSA-2018-0135, or FMCSA-
2018-0138. Their exemptions were applicable as of August 22, 2022 and
will expire on August 22, 2024.
In accordance with 49 U.S.C. 31315(b), each exemption will be valid
for 2 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, 49
U.S.C. chapter 313, or the FMCSRs.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2023-01261 Filed 1-23-23; 8:45 am]
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