Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
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.
The exemptions are effective April 23, 2015. The exemptions expire on April 24, 2017.
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FOR FURTHER INFORMATION CONTACT:
Charles A. Horan, III, Director, Office of Carrier, Driver and Vehicle Safety, (202) 366-4001, firstname.lastname@example.org, 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.
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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.
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 § 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,
for CDL holders, and inspections recorded in MCMIS.
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.
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.Start Printed 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:
Mr. Braden, 48, holds an operator's license in Kentucky.
Mr. Brown, 47, holds an operator's license in Kentucky.
Anthony Castile, III
Mr. Castile, 45, holds an operator's license in Pennsylvania.
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.
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).
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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