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Qualification of Drivers; Exemption Applications; Hearing Publication: Federal Register Agency: Federal Motor Carrier Safety Administration Byline: Larry W. Minor Date: 5 January 2023 Subjects: American Government  , Driver Licensing
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[Federal Register Volume 88, Number 3 (Thursday, January 5, 2023)]
[Notices]
[Pages 901-902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28628]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2022-0037]
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 exempt nine 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 are applicable on December 30, 2022. The
exemptions expire on December 30, 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-2022-0037) in the keyword box and click ``Search.'' Next,
sort the results by ``Posted (Newer-Older),'' choose the first notice
listed, 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 November 17, 2022, FMCSA published a notice announcing receipt
of applications from nine 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 (87 FR
69076). The public comment period ended on December 19, 2022, and one
comment was received.
FMCSA has evaluated the eligibility of these applicants and
determined that granting exemptions to these individuals would likely
achieve a level of safety that is 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
FMCSA received one comment in this proceeding. An individual
anonymously commented that they are in favor of ``granting exemptions
for the applicants provided the applicants are otherwise qualified to
drive CMVs in interstate traffic.'' However, they believe that the
exemption should not be necessary for individuals who are hearing
impaired as these individuals do not pose any risk to safety. The
individual notes that based on FMCSA's continued decisions to grant
exemptions to individuals who are hearing impaired and studies that
support hearing impaired individuals are not a risk to safety, and that
``Congress does not have a legitimate interest in disallowing persons
with hearing impairments from obtaining CDLs without first applying for
an exemption and being submitted to the lengthy public comment
process.'' They go on to ask why there is a general law from 1971
banning CMV drivers who are deaf or hard of hearing from driving that
requires the driver to appeal to a bureaucratic process. The majority
of their comment falls outside the scope of this notice. FMCSA grants
exemptions based an individual assessment of each applicant that
focuses on whether an equal or greater level of safety would likely be
achieved by permitting each of these drivers to drive in interstate
commerce.
[[Page 902]]
IV. Basis for Exemption Determination
Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption
from the FMCSRs for no longer than a 5-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 statutes also allow the Agency to renew exemptions at
the end of the 5-year period. However, FMCSA grants medical exemptions
from the FMCSRs for a 2-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 relevant scientific information and literature, and the 2008
Evidence Report, ``Executive Summary on Hearing, Vestibular Function
and 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, for commercial driver's license
(CDL) holders, and inspections recorded in the Motor Carrier Management
Information System. For non-CDL holders, the Agency reviewed the
driving records from the State Driver's Licensing Agency. 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 would likely be achieved by permitting
each of these drivers to drive in interstate commerce, the Agency finds
the drivers granted this exemption have demonstrated that they do not
pose a risk to public safety.
Consequently, FMCSA finds further that in each case exempting these
applicants from the hearing standard in Sec. 391.41(b)(11) would
likely achieve a level of safety equal to that existing without the
exemption, consistent with the applicable standard in 49 U.S.C.
31315(b)(1).
V. Conditions and Requirements
The terms and conditions of the exemption are provided to the
applicants in the exemption document and include the following: (1)
each driver must report any crashes or accidents as defined in Sec.
390.5T; (2) each driver must report all citations and convictions for
disqualifying offenses under 49 CFR parts 383 and 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 nine exemption applications, FMCSA
exempts the following drivers from the hearing standard; in Sec.
391.41(b)(11), subject to the requirements cited above:
Vanessa Bonilla (TX)
Saranne Fewel (CA)
James Harris (FL)
Jared Healan (CO)
Brandon Hester (TX)
Dustin Jackson (NJ)
Sondra McCoy (NC)
Sarah Nickell (IN)
Joshua Osborn (CA)
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. 2022-28628 Filed 1-4-23; 8:45 am]
BILLING CODE 4910-EX-P