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Qualification of Drivers; Exemption Applications; Hearing Publication: Federal Register Agency: Federal Motor Carrier Safety Administration Byline: Larry W. Minor Date: 29 December 2022 Subject: American Government  , Driver Licensing
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[Federal Register Volume 87, Number 249 (Thursday, December 29, 2022)]
[Notices]
[Pages 80254-80256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28282]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2022-0035]
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 18 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 December 22, 2022. The
exemptions expire on December 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-2022-0035) 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
[[Page 80255]]
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 receipt of
applications from 18 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
50690). The public comment period ended on September 16, 2022, and
three comments were 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 three comments in this proceeding. One commenter
stated that Mr. Hagop Balian's name was spelled incorrectly in the
notice published on August 17, 2022 (87 FR 50690). The spelling of Mr.
Balian's name has been corrected in this notice exempting him from the
hearing standard in Sec. 391.41(b)(11).
The Commercial Vehicle Training Association's (CVTA) comment did
not address any of the applications before the Agency in docket number
FMCSA-2022-0035. Instead, CVTA stated 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.''
CVTA also stated 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
requested additional research, public data, and guidance on this
matter. CVTA noted that the Agency's recent decisions to renew some
exemptions ``were based `on their merits.''' CVTA continued 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 stated 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 continued 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 stated 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 stated 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 stated it ``cannot support this rule
without additional research, data, and an articulated explanation on
the subject that can be consistently employed throughout the
industry.''
The last comment received on the August 17, 2022, notice opposes
CVTA's comment and supports the issuance of the exemptions.
FMCSA Response
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 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. 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, as well as the specific bases discussed in the December
2017 Federal Register notice (82 FR 61809). FMCSA also considers its
experience with hearing exemption holders. 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.
CVTA has not provided any data showing that drivers who are hard of
hearing or deaf are at increased crash risk. The Agency's decision to
exercise its discretion and grant the exemptions is not arbitrary or
capricious nor does it fail to meet the statutory standard. 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.
In granting these exemptions, FMCSA focuses on whether these
individuals can safely operate a CMV in interstate commerce. Matters
concerning the training of deaf or hard of hearing
[[Page 80256]]
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.
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 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 medical 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 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 that is 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 18 exemption applications, FMCSA
exempts the following drivers from the hearing standard in Sec.
391.41(b)(11), subject to the requirements cited above:
Stephen Arellano (CO)
Hagop Balian (MD)
Michael Clark (MD)
Jeremy Earl (IL)
James Hall (MS)
Arnold Heyen (NE)
Omar Ibrahim (MN)
Majuong Koijza (CO)
Peter Mannella (WA)
Jay Manns (PA)
Matthew Moyer (PA)
Ismail Muse (UT)
Dax Nutt (TX)
Michael Piirainen (ME)
Jeremy Stockman (KS)
Zander Symansky (KS)
Dalton Taylor (OK)
Jorge Toledo (FL)
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. 2022-28282 Filed 12-28-22; 8:45 am]
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