Qualification of Drivers; Application for Exemptions; National Association of the Deaf, 7479-7484 [2013-02266]
Download as PDF
<![CDATA[
Federal Register / Vol. 78, No. 22 / Friday, February 1, 2013 / Notices
complete contact information for this
individual.
The Department may pursue partial
funding of applications.
If selected for funding, a formal
agreement will be prepared between the
Department and the membership of the
multistate organization. The agreement
will include a refined and more detailed
scope of work.
Issued on: January 25, 2013.
Victor M. Mendez,
Federal Highway Administrator.
[FR Doc. 2013–02157 Filed 1–31–13; 8:45 am]
BILLING CODE 4910–22–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[Docket No. FMCSA–2012–0154]
Qualification of Drivers; Application for
Exemptions; National Association of
the Deaf
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of final disposition.
AGENCY:
FMCSA announces its
decision to grant requests from 40
individuals for exemptions from the
Agency’s physical qualifications
standard concerning hearing for
interstate drivers. The regulation and
the associated advisory criteria
published in the Code of Federal
Regulations as the ‘‘Instructions for
Performing and Recording Physical
Examinations’’ have resulted in
numerous drivers being prohibited from
operating CMVs in interstate commerce
based on the fact that they are unable to
meet the hearing requirements. After
notice and opportunity for public
comment, the Agency concluded that
granting exemptions for these CMV
drivers will provide a level of safety that
is equivalent to or greater than the level
of safety maintained without the
exemptions. FMCSA grants exemptions
that will allow these 40 individuals to
operate CMVs in interstate commerce
for a 2-year period. The exemptions
preempt State laws and regulations and
may be renewed.
DATES: The exemptions are effective
February 1, 2013. The exemptions
expire on February 2, 2015.
FOR FURTHER INFORMATION CONTACT:
Elaine M. Papp, 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.
srobinson on DSK4SPTVN1PROD with NOTICES
SUMMARY:
VerDate Mar<15>2010
17:26 Jan 31, 2013
Jkt 229001
Office hours are 8:30 a.m. to 5 p.m., e.t.,
Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
A. Electronic Access
You may see all the comments online
through the Federal Document
Management System (FDMS) at: https://
www.regulations.gov.
Docket: For access to the docket to
read background documents or
comments, go to https://
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: Anyone may search the
electronic form of all comments
received into any of DOT’s dockets by
the name of the individual submitting
the comment (or of the person signing
the comment, if submitted on behalf of
an association, business, labor union, or
other entity). You may review DOT’s
complete Privacy Act Statement in the
Federal Register (75 FR 82132,
December 29, 2010).
B. Background
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. On May 25, 2012,
FMCSA published a notice requesting
public comment on NAD’s application
for an exemption on behalf of 45
drivers. 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).
In support of its application for
exemptions, the National Association of
the Deaf (NAD), cited and relied on a
study requested by the Agency’s
PO 00000
Frm 00093
Fmt 4703
Sfmt 4703
7479
Medical Review Board and presented to
the Agency in 2008. The Evidence
Report was prepared for the purpose of
providing information regarding the
current state of knowledge on hearing
and CMV driver safety.1 The NAD
maintains that communication in
trucking is no longer hampered by
hearing loss because drivers
increasingly rely on smartphones and
other technology to communicate with
dispatch. The NAD conducted over 100
hours of interviews with individuals
who are deaf and hard of hearing and
reports that deaf drivers face fewer
distractions behind the wheel.
FMCSA grants 40 individuals an
exemption from the regulatory
requirement in § 391.41(b)(11) allowing
individuals who do not meet the
hearing requirements to operate 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 the applicant’s driving record
found in the CDLIS,2 for CDL holders,
and interstate and intrastate inspections
recorded in MCMIS.3 The Agency
1 Price, N., Tiller, M., Reston, J., & Tregear, S.,
‘‘Executive Summary on Hearing, Vestibular
Function and Commercial Motor Driving Safety,’’
presented to FMCSA on August 26, 2008. Retrieved
April 27, 2012, from: https://www.fmcsa.dot.gov/
rules-regulations/TOPICS/mep/report/HearingEvidence-Report-Final-Executive-Summaryprot.pdf. See the docket for this notice. The full text
of the Evidence Report is available through a link
at https://ntl.bts.gov/lib/30000/30400/30459/
Hearing_DOT-FMCSA_-_FINAL_8-29-08.pdf. The
evidence report also reviewed vestibular disorders,
which are not included in these exemption
applications.
2 Commercial Driver License Information System
(CDLIS) is an information system that allows the
exchange of commercial driver licensing
information among all the States. CDLIS includes
the databases of 51 licensing jurisdictions and the
CDLIS Central Site, all connected by a
telecommunications network.
3 Motor Carrier Management Information System
(MCMIS) is an information system that captures
data from field offices through SAFETYNET,
CAPRI, and other sources. It is a source for FMCSA
E:\FR\FM\01FEN1.SGM
Continued
01FEN1
7480
Federal Register / Vol. 78, No. 22 / Friday, February 1, 2013 / Notices
intrastate for the past 14 years,
including driving dump trucks and
tractor trailer trucks. He would like to
drive tractor trailer trucks in interstate
commerce, if he is granted an
exemption.
he failed his hearing test. During that
time he drove a variety of tractor trailer
trucks in interstate commerce. He would
like to obtain a CDL and return to
driving tractor trailer trucks, if he is
granted an exemption.
William B. Britt, Jr.
C. Exemptions
Following individualized assessments
of the exemption applications,
including a review of detailed follow-up
information requested from each
applicant, FMCSA grants exemptions
from 49 CFR 391.41(b)(11) to 40
individuals. Under current FMCSA
regulations, all of the 40 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.
In addition to evaluating the medical
status of each applicant, FMCSA
evaluated the crash and violation data
for the 40 drivers, some of whom
currently drive a CMV in intrastate
commerce. The CDLIS and MCMIS were
searched for crash and violation data on
the 40 applicants. Each applicant’s
record demonstrated a safe driving
history.
FMCSA published a notice
announcing the exemption applications
and requested public comment for each
of the applicants. A short summary of
the applicants’ qualifications follows. A
discussion of the comments received
follows in section D of this notice. For
those applicants who were discussed in
the previous notice but are not
mentioned in this notice, the Agency
will complete the evaluation of those
applications and announce its decision
at a later date.
srobinson on DSK4SPTVN1PROD with NOTICES
acknowledges there could be potential
consequences of a driver being hearing
impaired and/or deaf while operating a
CMV under some scenarios. However,
the Agency believes the drivers covered
by the exemptions do not pose a risk to
public safety.
Mr. Britt holds a class D driver’s
license from the state of Tennessee.
Class D has a for-hire endorsement that
allows a person to drive vehicles such
as limousines and taxis. He operates his
personal vehicle in his job as a
repairman. He would like to obtain a
CDL and drive passenger buses, if
granted an exemption.
Edward T. Geariety
Mr. Geariety held a class A CDL from
the state of Minnesota from 1996 until
2011, when he failed his hearing test.
During that time he drove large trucks
carrying stone from a quarry to
customers. He would like to return to
driving CMVs in interstate commerce, if
granted an exemption.
Docket # FMCSA–2012–0154
On May 25, 2012, FMCSA published
a notice of receipt of exemption
applications and requested public
comment on 40 individuals (71 FR
60606; Docket number FMCSA–2012–
0154). The comment period ended on
July 30, 2012. Five hundred and seventy
commenters responded to the Federal
Register notice. A discussion of the
comments is presented later in this
document. FMCSA has determined that
the following applicants should be
granted an exemption.
David W. Bateman
Mr. Bateman holds a class A
commercial driver’s license (CDL) from
the state of Minnesota. He has driven
inspection, crash, compliance review, safety audit,
and registration data.
VerDate Mar<15>2010
17:26 Jan 31, 2013
Jkt 229001
Ernest W. Brown
Mr. Brown holds a class D driver’s
license from the state of Kentucky. He
would like to obtain a CDL and drive
CMVs greater than 26,001 pounds in
interstate commerce, if granted an
exemption.
Cody J. Campbell
Mr. Campbell holds a class D driver’s
license from Louisiana. He currently is
a ‘‘light duty driver,’’ driving a tractor.
He would like to obtain a CDL and drive
heavy equipment such as a dump truck,
or rig truck with a trailer, if granted an
exemption.
Tyjuan M. Davis
Mr. Davis holds a class D driver’s
license from the state of Florida. His
family is in the trucking business and he
would like to obtain a class A CDL and
drive tractor trailers in interstate
commerce, if granted an exemption.
Randall R. Doane
Mr. Doane holds a class AM CDL from
the state of Texas. He has logged over
250,000 miles driving trucks in
interstate commerce prior to failing his
hearing test recently. He has experience
driving double/triple trailers, tankers
and hazardous material transport. He is
currently permitted to drive a CMV in
intrastate commerce. He would like to
return to driving CMVs in interstate
commerce, if granted an exemption.
Allen W. Estes
Mr. Estes holds a class B CDL from
the state of Louisiana. He has driven a
bus transporting students to and from
school since 1990. He would like to
obtain a CDL so that he can transport
students to events outside of Louisiana,
if granted an exemption.
Leslie A. Fairbanks
Mr. Fairbanks held a class A CDL
driver’s license from the state of
Minnesota from 2001 until 2010, when
PO 00000
Frm 00094
Fmt 4703
Sfmt 4703
Donald W. Gordon
Mr. Gordon holds a class CM driver’s
license from the state of Pennsylvania.
He operates a mini-van as an
independent contractor picking up and
delivering materials. He would like to
obtain a CDL and drive CMVs for a
national carrier, if granted an
exemption.
William Edward Haab
Mr. Haab holds a class D driver’s
license from the state of Louisiana. He
is interested in obtaining a CDL and
pursuing a career in commercial
trucking, if granted an exemption.
Charles L. Harper
Mr. Harper holds a driver’s license
from the state of Washington. He has
driven rental vehicles and a 12-seat van
for a group home. He would like to
obtain a CDL and have the opportunity
to drive CMVs in interstate commerce,
if granted an exemption.
Cornelio Hernandez
Mr. Hernandez holds a driver’s
license from the state of California. He
has enrolled in a driving course for a
class B CDL, but was unable to complete
it as he did not pass the hearing test. He
would like to obtain a class A or B CDL
to pursue work driving CMVs in
interstate commerce driver, if granted an
exemption.
Alvin L. Johnson
Mr. Johnson holds a class CM driver’s
license from the state of Georgia. He
would like to attend driving school to
obtain a CDL and drive CMVs in
interstate commerce, if granted an
exemption.
Jerry D. Jones
Mr. Jones holds a class C CDL from
the state of Texas. He has 7 years’
experience driving a variety of forklifts
for a construction company. He would
like to pursue opportunities driving
CMVs in interstate commerce, if granted
an exemption.
E:\FR\FM\01FEN1.SGM
01FEN1
Federal Register / Vol. 78, No. 22 / Friday, February 1, 2013 / Notices
James E. Karr
Mr. Karr holds a class DM driver’s
license from the state of Kentucky. He
would like to obtain a CDL and seek
employment opportunities driving
CMVs in interstate commerce, if granted
an exemption.
Lorin W. King
Mr. King holds a class D driver’s
license from the state of Oklahoma. The
class D license permits one to drive
regular automobiles and trucks. He has
experience driving single trailer
vehicles with airbrakes. He would like
to obtain a CDL and seek employment
opportunities driving CMVs in interstate
commerce, if granted an exemption.
Christopher Kuller
Mr. Kuller holds a class M driver’s
license from the state of Indiana. In the
past, he held a CDL and hazmat license,
and drove in interstate commerce for 14
years, until he was unable to pass the
DOT hearing test. He would like to
obtain a CDL and return to driving
CMVs in interstate commerce, if granted
an exemption.
Julio Cesar Medrano
Mr. Medrano holds a driver’s license
from the state of Washington. He is
currently a student majoring in diesel
technology, graduating in May 2012.
Most job descriptions for diesel engine
technicians include a requirement that
he holds a CDL, due to the need to pick
up and drive trucks back to the shop for
repair. He would like to obtain a CDL
and drive CMVs in interstate commerce,
if granted an exemption.
Hal A. Miller
Mr. Miller holds a class C driver’s
license from the state of Iowa. A class
C allows the operation of vehicles under
26,000 pounds. He has experience
operating a Ryder rental truck and
personal farm tractors. He would like to
obtain a CDL and drive CMVs in
interstate commerce, if granted an
exemption.
srobinson on DSK4SPTVN1PROD with NOTICES
Kathy K. Miller
Ms. Miller holds a class C driver’s
license from the state of Iowa. She has
experience driving students to and from
local activities. She is limited at work
due to her not being able to pass the
hearing test and obtain a DOT medical
card. She would like to obtain a CDL
and drive CMVs in interstate commerce,
if granted an exemption. She is
interested in career opportunities with
package delivery companies.
VerDate Mar<15>2010
17:26 Jan 31, 2013
Jkt 229001
Brian J. Minch
Mr. Minch holds a driver’s license
from the state of New Hampshire. He
currently drives super duty pick-up
trucks for landscape and construction
companies. He would like to obtain a
CDL and drive CMVs in interstate
commerce, if granted an exemption.
Larry J. Moss
Mr. Moss holds a driver’s license from
the state of California. He currently
works for a delivery and hauling
service, driving trucks and often pulling
a trailer. He would like to attend
trucking school, obtain a CDL and drive
CMVs in interstate commerce, if granted
an exemption.
Leslie R. O’Rorke
Mr. O’Rorke holds a class D driver’s
license from the state of Illinois. He has
experience driving super duty pick-up
trucks with a trailer and dump trucks
for a tree service company. He would
like to obtain a CDL and drive CMVs in
interstate commerce, if granted an
exemption.
Timothy A. Parker
Mr. Parker holds a class C driver’s
license from the state of California. The
class C license in California allows one
to operate a traditional two-axle vehicle.
He has experience operating 18-wheel
trucks as well as forklifts. He would like
to obtain a CDL so he can drive the
tractor trailer trucks in interstate
commerce, if granted an exemption.
Gregory M. Potter
Mr. Potter holds a class C driver’s
license from the state of Texas. He has
experience driving a company van and
rental trucks towing a trailer. He would
like to obtain a class A CDL to drive
tanker trucks in interstate commerce, if
granted an exemption.
Gerson P. Rameriez
Mr. Rameriez holds a class D driver’s
license from the state of Montana. He
has experience driving a dump truck
towing a trailer. He also drove a truck
for five years while working as a
painter. He would like to obtain a class
A CDL and attend a trucking school in
Montana, if granted an exemption.
Jeremy Reams
Mr. Reams holds a class D driver’s
license from the state of Kentucky. The
class D is valid for any single motor
vehicle, and a trailer with weights not
greater than 26,000 pounds. He has
experience driving 24-foot moving
trucks, fifth wheel vehicles and has
hauled ATV’s for personal use. He
would like to obtain a CDL to drive
PO 00000
Frm 00095
Fmt 4703
Sfmt 4703
7481
CMVs in interstate commerce, if granted
an exemption.
Robert R. Rotondi
Mr. Rotondi holds a driver’s license
from the state of South Carolina. He has
experience driving rental trucks and
forklifts. He currently owns a 12-foot
trailer he uses to tow his motorcycle. He
would like to obtain a class A or B CDL
and drive CMVs in interstate commerce,
if granted an exemption.
Daniel Schoultz
Mr. Schoultz holds a class C driver’s
license from the state of Pennsylvania.
He has 25 years’ experience driving
trucks, but he is currently not able to
pass the DOT hearing test. He would
like to obtain a CDL again and drive
CMVs in interstate commerce, if granted
an exemption.
Stanley W. Shields
Mr. Shields holds a class D driver’s
license from the state of Kentucky. He
would like to obtain a CDL and to seek
employment opportunities as a CMV
driver, if granted an exemption.
James M. Skinner
Mr. Skinner holds a driver’s license
from the state of Florida that allows him
to drive any non-commercial vehicle
less than 26,001 pounds. He has
experience driving rental trucks and
towing rental trailers. He would like to
obtain a class A CDL and drive an
interstate tractor trailer weighing over
26,001 pounds with airbrakes, if granted
an exemption.
Ronald J. Taylor
Mr. Taylor holds a class C driver’s
license from the state of Texas. He is
currently a student, but would like to
seek opportunities in driving. He would
like to obtain a CDL to drive CMVs in
interstate commerce, if granted an
exemption.
Justin J. Trethewey
Mr. Trethewey holds a class C
chauffeur license from the state of
Michigan. He is starting his own transit
business after working as a chauffeur.
He would like to obtain a CDL and tow
a gooseneck trailer to transport cars,
recreational vehicles or small trailers, if
granted an exemption.
Gilbert J. Valdez
Mr. Valdez holds a driver’s license
from the state of Rhode Island. He
currently works part-time and would
like to obtain a CDL to seek employment
opportunities driving CMVs in interstate
commerce, if granted an exemption.
E:\FR\FM\01FEN1.SGM
01FEN1
7482
Federal Register / Vol. 78, No. 22 / Friday, February 1, 2013 / Notices
Mark L. Valimont
Mr. Valimont holds a class C driver’s
license from the state of Texas. He is
currently a package handler. He has 13
years’ experience driving dump trucks
and three years’ experience driving a
tractor. He would like to obtain a CDL
and drive CMVs in interstate commerce,
if granted an exemption.
Kevin C. Willis
Mr. Willis holds a class C driver’s
license from the state of California. He
has held a FAA Private Pilot Certificate
since 2006 and flies private planes that
weigh up to 12,500 pounds. He would
like to obtain a CDL and pursue
employment opportunities in the
commercial transportation business, if
granted an exemption.
James R. Wilson
Mr. Wilson holds a class C driver’s
license from the state of Georgia. He has
experience driving forklifts and a super
duty pickup truck for a private
employer. He would like to obtain a
CDL and drive CMV’s in interstate
commerce, if granted an exemption.
Holly Cameron Wright, Jr.
Mr. Wright holds a class C driver’s
license from the state of North Carolina.
He has experience driving forklifts and
commercial vehicles at his familyowned business site. He would like to
obtain a CDL and drive CMVs in
interstate commerce, if granted an
exemption.
D. Comments
In response to the notice, FMCSA
received 570 comments.
srobinson on DSK4SPTVN1PROD with NOTICES
Granting the Exemptions on a Trial
Basis
The American Trucking Associations
(ATA) acknowledged the growing need
in the industry for drivers and the
difficulty in finding qualified drivers.
Given this information, ‘‘ATA believes
that it is in the best interest of the
FMCSA, the trucking industry, society
and highway safety to grant the
requested exemptions, with the
following stipulations:
(a) Granting exemptions to these 40
drivers would be viewed as a temporary,
single instance measure, until the
proposed study was completed;
(b) In granting the exemptions,
FMCSA should compel the applicants to
participate in a study about safety
performance, and
(c) If the study indicates that the
drivers perform safely, that FMCSA
should initiate rulemaking to change the
current standard.
VerDate Mar<15>2010
17:26 Jan 31, 2013
Jkt 229001
FMCSA Response: FMCSA notes that
the ATA is interested in having more
qualified drivers who would otherwise
not be qualified due to their hearing
impairment. However, FMCSA does not
plan to implement the ATA proposal.
FMCSA does not believe it would be
beneficial to future applicants to restrict
exemptions to a two-year, nonrenewable process as part of a proposed
new program. The FMCSA’s 2008
Evidence Report found no increase in
crash risk among hearing impaired
drivers, and the Agency believes that
additional studies could simply delay
drivers receiving a CDL and prove costly
to the government without providing
meaningful additional safety to the
driving public.
No Ad hoc Exemptions
The Advocates for Highway and Auto
Safety (Advocates) stated that they
‘‘suggest it is time for FMCSA to engage
the process to revise the standards
rather than short-circuit those
procedures in order to grant ad hoc
exemptions.’’ They further state their
concern that the only scientific evidence
presented was in connection with the
FMCSA Hearing Evidence Report. They
state that the 2008 Evidence Report is
not a research study, but rather a review
and evaluation of several prior studies
related to hearing and drivers.
FMCSA Response: The Agency does
not believe a new scientific study is
necessary to make a determination
concerning the exemption applications.
The 2008 Evidence Report found that
previous studies by various researchers
did not provide evidence to support the
contention that individuals with hearing
deficits are at an increased risk for a
motor vehicle crash. And there is no
basis for concluding that a new study
would yield different results. Also, a
number of States allow hearing
impaired CMV drivers. In fact, several of
the drivers discussed in this notice
already have experience as CMV
drivers. Based on the available
literature, and the safe driving
experience of these individuals, the
Agency believes granting the exemption
is appropriate. FMCSA evaluates each
driver on a case-by-case basis and also
investigates the past driving/violation
record to ensure an acceptable level of
safety.
While the Agency appreciates
Advocates’ suggestion that the Agency
should revise the standards rather than
grant ad hoc exemptions, the
rulemaking process is too lengthy to
afford relief to the individuals affected
here. With no specific data to show that
hearing impaired or deaf drivers are a
danger to the driving public, granting
PO 00000
Frm 00096
Fmt 4703
Sfmt 4703
these exemptions will provide an
opportunity to drivers to enter the
trucking industry or further pursue
driving careers.
FMCSA has received a petition for
rulemaking from NAD formally
requesting that the Agency eliminate the
hearing standard under 49 CFR Part 391.
A copy of the petition, submitted in
accordance with 49 CFR part 389
(Rulemaking Procedures—Federal
Motor Carrier Safety Regulations) has
been placed in the docket referenced at
the beginning of this notice. The Agency
will consider NAD’s petition in
accordance with the rules under 49 CFR
part 389 and issue a decision on the
matter at a later date. If the Agency
grants the petition, it would initiate a
rulemaking seeking public comment on
proposed changes to the regulations.
Concerns About Exemptions for Bus
Drivers With Passengers
The American Bus Association (ABA)
submitted comments stating their
concerns regarding allowing hearing
impaired or deaf drivers to drive buses
with passengers. They stated ‘‘The
ABA’s opposition to the NAD’s
application is bottomed on the tasks a
CMV motorcoach driver must fulfill
while responsible for up to fifty-five
passengers in a motorcoach.’’ They
further state:
‘‘While it may be true, as NAD contends, that
technology may keep hearing impaired
drivers from being ‘hampered’ by the loss of
hearing, that rationale cannot apply when a
CMV driver is transporting passengers. For
CMV motorcoach drivers piloting the vehicle
is only a part of the driver’s duties. Drivers
with a ‘P’ endorsement may be required to
interact with passengers in any number of
ways that requires the driver to successfully
pass the hearing requirement in 49 CFR 391.’’
They oppose the application for
exemption to the extent that the
exemption would allow any of the 40
applicants to obtain a CDL with a
passenger endorsement or in any way
qualify them to operate a motorcoach in
interstate commerce.
FMCSA Response: The Agency
acknowledges ABA’s concerns about the
need for motorcoach drivers to
communicate with the passengers in the
event of an emergency. Motorcoach
drivers are responsible for the safety of
passengers and that the driver must be
able to hear any sign of passenger
distress. Therefore, the terms and
conditions for the exemptions would
not allow the hearing impaired drivers
to operate a motorcoach with passengers
in interstate commerce.
E:\FR\FM\01FEN1.SGM
01FEN1
Federal Register / Vol. 78, No. 22 / Friday, February 1, 2013 / Notices
Not Safe for the Driving Public To Grant
These Exemptions
The Agency received an additional
nine comments from private citizens
and advocacy groups expressing their
concern and asking FMCSA not to grant
these exemptions. All of the these
comments simply expressed that in
their opinion they felt it was a safety
issue, and they asked FMCSA not to
grant any of the 40 exemptions.
FMCSA Response: The Agency
acknowledges these comments and their
concerns. However, as previously stated
there is no specific scientific data to
show that hearing impaired drivers are
a higher safety risk than other drivers.
Also, several States already allow
hearing impaired individuals to operate
commercial vehicles in intrastate
commerce and most, if not all States
allow such individuals to operate
passenger cars.
srobinson on DSK4SPTVN1PROD with NOTICES
Support for Applicants and the
Exemptions
The FMCSA received 505 comments
from individuals in support of the
exemption applications. Most of them
stated that the applicants should ‘‘be
granted unrestricted exemptions from
the hearing requirements’’ and cited
evidence from the FMCSA’s 2008
Executive Study of the hearing
requirement and that it shows there is
not an increase in crash risk for hearing
impaired drivers. The letter also states
that they strongly feel these deaf drivers
should be able to drive any type of
vehicle.
Some of the commenters stated that
they would like FMCSA to allow all
drivers with hearing impairment to be
able to obtain a CDL. They state that
with modern technology, such drivers
can communicate without difficulty.
A number of the comments stated that
they believed FMCSA was
discriminating against deaf drivers by
prohibiting them from working in the
trucking industry. Others stated that
they thought that hearing impaired
drivers were safer drivers and not going
to be distracted by conversations, cell
phones and radio noise. Others stated
that with modern technology, there was
not a hearing requirement in their
opinion. Additionally, there were
comments that other countries allow
hearing impaired drivers to operate
CMVs and that some States offer a
waiver to hearing impaired drivers for
intrastate driving.
The FMCSA also received an
additional 43 comments in support of
these exemptions from advocacy groups.
These included comments from: the
Nebraska Commission for the Deaf and
VerDate Mar<15>2010
17:26 Jan 31, 2013
Jkt 229001
Hard of Hearing; Regional Center for
Independent Living; First People of GA;
and the Commonwealth of
Massachusetts, Department of Mental
Health. All stated their belief that
granting these exemptions is the right
thing to do at this time.
In addition, the Agency received a
comment of support from the National
Association of the Deaf, the organization
that submitted the application on behalf
of the drivers. NAD stated that it
‘‘unequivocally supports the granting of
a full exemption to each of the 45
drivers.’’ They have a concern regarding
the validity of the ‘‘forced whisper test’’
to assess hearing and cite FMCSA’s
2008 Evidence Report. They state that
the report raised questions about the
validity of the same test. They also
called for the removal of the hearing
requirement altogether from FMCSA’s
physical qualification standards.
The U.S. Equal Employment
Opportunity Commission (EEOC)
believes granting the exemptions would
be consistent with the Americans with
Disabilities Act (ADA). EEOC ‘‘urges
FMCSA to give due consideration to the
results of the 2008 hearing loss study as
it represents current and objective
evidence that will help the agency
determine whether a driver who cannot
meet the hearing standard should be
permitted to operate a CMV in interstate
commerce.’’ They further urged the
Agency to adopt a flexible and
comprehensive approach to be able to
obtain a CDL.
Deaf Truckers United stated that
drivers who are hearing impaired rely
on their other heightened senses such as
vision and touch. They state that these
drivers are more keenly aware of these
senses and that they are able to pick up
things that hearing drivers miss. They
also ask that the hearing requirement be
removed from 49 CFR Part 391.
FMCSA Response: FMCSA
acknowledges support for these
exemptions. The Agency carefully
reviewed all the comments about every
individual. As stated above, the
rulemaking process is too lengthy to
afford relief to the individuals affected
here. FMCSA has received a petition for
rulemaking from NAD formally
requesting that the Agency eliminate the
hearing standard under 49 CFR Part 391.
The Agency will consider the petition in
accordance with the rules under 49 CFR
Part 389, and issue a decision on the
matter at a later date. If the Agency
grants the petition, it would initiate a
rulemaking seeking public comment on
proposed changes to the regulations.
PO 00000
Frm 00097
Fmt 4703
Sfmt 4703
7483
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 part
391.
Conclusion
The Agency is granting exemptions
from the hearing standard, 49 CFR
391.41(b)(11), to 40 individuals based
on a thorough evaluation of each
driver’s qualifications, safety
experience, and medical condition.
Safety analysis of information relating to
these 40 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. By granting the exemptions,
the CMV industry will gain 40
additional CMV drivers. 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 40
drivers for a period of 2 years with
annual medical certification required:
David W. Bateman (MN); William B.
Britt (TN); David W. Brown (ME); Ernest
W. Brown (KY); Cody J. Campbell (IA);
Tyjuan M. Davis (FL); Randall R. Doane
(TX); Allan W. Estes (LA); Leslie A.
Fairbanks (MN); Edward T. Geariety
(NY); Donald W. Gordon (PA); William
Edward Haab (LA); Charles L. Harper
(WA); Cornelio E. Hernandez (CA);
Alvin Leo Johnson (GA); Jerry D. Jones
E:\FR\FM\01FEN1.SGM
01FEN1
7484
Federal Register / Vol. 78, No. 22 / Friday, February 1, 2013 / Notices
(TX); James Karr (KY); Christopher
Kuller (PA); Lorin W. King (OK); Julio
Cesar Medrano (WA); Hal A. Miller (IA);
Kathy K. Miller (IA); Brian I. Minch
(NH); Larry J. Moss (CA);Lesley R.
O’Rorke (IL); Timothy A. Parker (CA);
Gregory M. Potter (TX); Gerson P.
Ramirez (MT); Jeremy Reams (KY);
Robert R. Rotondi (SC); Daniel Schoultz
(PA); Stanley W. Shields (KY); James M.
Skinner (FL); Ronald J. Taylor (TX);
Justin J. Trehtewey (MI); Gilbert Valdez
(RI); Mark L. Valimont (TX); Kevin C.
Wllis (CA); James R. Wilson (GA); Holly
Cameron Wright Jr. (NC) from the
prohibition of CMV operations by
persons with who do not meet the
hearing requirement. If the exemption is
still in effect at the end of the 2-year
period, the person may apply to FMCSA
for a renewal under procedures in effect
at that time.
Issued on: January 29, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013–02266 Filed 1–30–13; 4:15 pm]
BILLING CODE 4910–EX–P
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
[NHTSA–2012–0135]
Insurer Reporting Requirements;
Reports Under 49 U.S.C. on Section
33112(c)
National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation.
ACTION: Notice of availability.
AGENCY:
This notice announces
publication by NHTSA of the annual
insurer report on motor vehicle theft for
the 2007 reporting year. Section
33112(h) of Title 49 of the U.S. Code,
requires this information to be compiled
periodically and published by the
agency in a form that will be helpful to
the public, the law enforcement
community, and Congress. As required
by section 33112(c), this report provides
information on theft and recovery of
vehicles; rating rules and plans used by
motor vehicle insurers to reduce
premiums due to a reduction in motor
vehicle thefts; and actions taken by
insurers to assist in deterring thefts.
ADDRESSES: Interested persons may
obtain a copy of this report or read
background documents by going to
https://regulations.dot.gov at any time or
to Room W12–140 on the ground level
of the West Building, 1200 New Jersey
Avenue SE., Washington, DC 20590,
srobinson on DSK4SPTVN1PROD with NOTICES
SUMMARY:
VerDate Mar<15>2010
17:26 Jan 31, 2013
Jkt 229001
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal
Holidays. Requests should refer to
Docket No. 2012–0135.
FOR FURTHER INFORMATION CONTACT: Ms.
Carlita Ballard, Office of International
Policy, Fuel Economy and Consumer
Programs, NHTSA, 1200 New Jersey
Ave. SE., Washington, DC 20590. Ms.
Ballard’s telephone number is (202)
366–5222. Her fax number is (202) 493–
2990.
SUPPLEMENTARY INFORMATION: The Motor
Vehicle Theft Law Enforcement Act of
1984 (Theft Act) was implemented to
enhance detection and prosecution of
motor vehicle theft (Pub. L. 98–547).
The Theft Act added a new Title VI to
the Motor Vehicle Information and Cost
Savings Act, which required the
Secretary of Transportation to issue a
theft prevention standard for identifying
major parts of certain high-theft lines of
passenger cars. The Act also addressed
several other actions to reduce motor
vehicle theft, such as increased criminal
penalties for those who traffic in stolen
vehicles and parts, curtailment of the
exportation of stolen motor vehicles and
off-highway mobile equipment,
establishment of penalties for
dismantling vehicles for the purpose of
trafficking in stolen parts, and
development of ways to encourage
decreases in premiums charged to
consumers for motor vehicle theft
insurance.
This notice announces publication by
NHTSA of the annual insurer report on
motor vehicle theft for the 2007
reporting year. Section 33112(h) of Title
49 of the U.S. Code, requires this
information to be compiled periodically
and published by the agency in a form
that will be helpful to the public, the
law enforcement community, and
Congress. As required by section
33112(h), this report focuses on the
assessment of information on theft and
recovery of motor vehicles,
comprehensive insurance coverage and
actions taken by insurers to reduce
thefts for the 2007 reporting period.
Section 33112 of Title 49 requires
subject insurers or designated agents to
report annually to the agency on theft
and recovery of vehicles, on rating rules
and plans used by insurers to reduce
premiums due to a reduction in motor
vehicle thefts, and on actions taken by
insurers to assist in deterring thefts.
Rental and leasing companies also are
required to provide annual theft reports
to the agency. In accordance with 49
CFR 544.5, each insurer, rental and
leasing company to which this
regulation applies must submit a report
annually not later than October 25,
PO 00000
Frm 00098
Fmt 4703
Sfmt 4703
beginning with the calendar year for
which they are required to report. The
report would contain information for
the calendar year three years previous to
the year in which the report is filed. The
report that was due by October 25, 2010
contains the required information for
the 2007 calendar year. Interested
persons may obtain a copy of individual
insurer reports for CY 2007 by
contacting the U.S. Department of
Transportation, Docket Management,
1200 New Jersey Avenue SE., West
Building, Room W12–140 ground level,
Washington, DC 20590–001. Requests
should refer to Docket No. 2012–0135.
The annual insurer reports provided
under section 33112 are intended to aid
in implementing the Theft Act and
fulfilling the Department’s requirements
to report to the public the results of the
insurer reports. The first annual insurer
report, referred to as the Section 612
Report on Motor Vehicle Theft, was
prepared by the agency and issued in
December 1987. The report included
theft and recovery data by vehicle type,
make, line, and model which were
tabulated by insurance companies and,
rental and leasing companies.
Comprehensive premium information
for each of the reporting insurance
companies was also included. This
report, the twentieth, discloses the same
subject information and follows the
same reporting format.
Issued on: January 28, 2013.
Christopher J. Bonanti,
Associate Administrator for Rulemaking.
[FR Doc. 2013–02208 Filed 1–31–13; 8:45 am]
BILLING CODE 4910–59–P
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[Docket No. FD 35712]
BNSF Railway Company—Trackage
Rights Exemption—Pemiscot County
Port Authority
Pemiscot County Port Authority
(PCPA) has agreed to grant local
trackage rights to BNSF Railway
Company (BNSF) over the rail line
located between PCPA’s connection
with BNSF near BNSF milepost 212.22
at Hayti, Mo., and the Pemiscot Port
Harbor, on the Mississippi River near
Hayti, a distance of 4.9 miles.1
The transaction is scheduled to be
consummated after February 16, 2013,
1 BNSF states that it is currently negotiating a
trackage rights agreement with PCPA, and that a
copy of the agreement will be filed with the Board
within 10 days of its execution.
E:\FR\FM\01FEN1.SGM
01FEN1
]]>Agencies
[Federal Register Volume 78, Number 22 (Friday, February 1, 2013)]
[Notices]
[Pages 7479-7484]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02266]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2012-0154]
Qualification of Drivers; Application for Exemptions; National
Association of the Deaf
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition.
-----------------------------------------------------------------------
SUMMARY: FMCSA announces its decision to grant requests from 40
individuals for exemptions from the Agency's physical qualifications
standard concerning hearing for interstate drivers. The regulation and
the associated advisory criteria published in the Code of Federal
Regulations as the ``Instructions for Performing and Recording Physical
Examinations'' have resulted in numerous drivers being prohibited from
operating CMVs in interstate commerce based on the fact that they are
unable to meet the hearing requirements. After notice and opportunity
for public comment, the Agency concluded that granting exemptions for
these CMV drivers will provide a level of safety that is equivalent to
or greater than the level of safety maintained without the exemptions.
FMCSA grants exemptions that will allow these 40 individuals to operate
CMVs in interstate commerce for a 2-year period. The exemptions preempt
State laws and regulations and may be renewed.
DATES: The exemptions are effective February 1, 2013. The exemptions
expire on February 2, 2015.
FOR FURTHER INFORMATION CONTACT: Elaine M. Papp, 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 8:30 a.m. to 5 p.m., e.t.,
Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
A. Electronic Access
You may see all the comments online through the Federal Document
Management System (FDMS) at: https://www.regulations.gov.
Docket: For access to the docket to read background documents or
comments, go to https://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: Anyone may search the electronic form of all comments
received into any of DOT's dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, or other
entity). You may review DOT's complete Privacy Act Statement in the
Federal Register (75 FR 82132, December 29, 2010).
B. Background
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. On May 25, 2012, FMCSA published a notice
requesting public comment on NAD's application for an exemption on
behalf of 45 drivers. 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).
In support of its application for exemptions, the National
Association of the Deaf (NAD), cited and relied on a study requested by
the Agency's Medical Review Board and presented to the Agency in 2008.
The Evidence Report was prepared for the purpose of providing
information regarding the current state of knowledge on hearing and CMV
driver safety.\1\ The NAD maintains that communication in trucking is
no longer hampered by hearing loss because drivers increasingly rely on
smartphones and other technology to communicate with dispatch. The NAD
conducted over 100 hours of interviews with individuals who are deaf
and hard of hearing and reports that deaf drivers face fewer
distractions behind the wheel.
---------------------------------------------------------------------------
\1\ Price, N., Tiller, M., Reston, J., & Tregear, S.,
``Executive Summary on Hearing, Vestibular Function and Commercial
Motor Driving Safety,'' presented to FMCSA on August 26, 2008.
Retrieved April 27, 2012, from: https://www.fmcsa.dot.gov/rules-regulations/TOPICS/mep/report/Hearing-Evidence-Report-Final-Executive-Summary-prot.pdf. See the docket for this notice. The full
text of the Evidence Report is available through a link at https://ntl.bts.gov/lib/30000/30400/30459/Hearing_DOT-FMCSA_-_FINAL_8-29-08.pdf. The evidence report also reviewed vestibular disorders,
which are not included in these exemption applications.
---------------------------------------------------------------------------
FMCSA grants 40 individuals an exemption from the regulatory
requirement in Sec. 391.41(b)(11) allowing individuals who do not meet
the hearing requirements to operate 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 the
applicant's driving record found in the CDLIS,\2\ for CDL holders, and
interstate and intrastate inspections recorded in MCMIS.\3\ The Agency
[[Page 7480]]
acknowledges there could be potential consequences of a driver being
hearing impaired and/or deaf while operating a CMV under some
scenarios. However, the Agency believes the drivers covered by the
exemptions do not pose a risk to public safety.
---------------------------------------------------------------------------
\2\ Commercial Driver License Information System (CDLIS) is an
information system that allows the exchange of commercial driver
licensing information among all the States. CDLIS includes the
databases of 51 licensing jurisdictions and the CDLIS Central Site,
all connected by a telecommunications network.
\3\ Motor Carrier Management Information System (MCMIS) is an
information system that captures data from field offices through
SAFETYNET, CAPRI, and other sources. It is a source for FMCSA
inspection, crash, compliance review, safety audit, and registration
data.
---------------------------------------------------------------------------
C. Exemptions
Following individualized assessments of the exemption applications,
including a review of detailed follow-up information requested from
each applicant, FMCSA grants exemptions from 49 CFR 391.41(b)(11) to 40
individuals. Under current FMCSA regulations, all of the 40 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.
In addition to evaluating the medical status of each applicant,
FMCSA evaluated the crash and violation data for the 40 drivers, some
of whom currently drive a CMV in intrastate commerce. The CDLIS and
MCMIS were searched for crash and violation data on the 40 applicants.
Each applicant's record demonstrated a safe driving history.
FMCSA published a notice announcing the exemption applications and
requested public comment for each of the applicants. A short summary of
the applicants' qualifications follows. A discussion of the comments
received follows in section D of this notice. For those applicants who
were discussed in the previous notice but are not mentioned in this
notice, the Agency will complete the evaluation of those applications
and announce its decision at a later date.
Docket FMCSA-2012-0154
On May 25, 2012, FMCSA published a notice of receipt of exemption
applications and requested public comment on 40 individuals (71 FR
60606; Docket number FMCSA-2012-0154). The comment period ended on July
30, 2012. Five hundred and seventy commenters responded to the Federal
Register notice. A discussion of the comments is presented later in
this document. FMCSA has determined that the following applicants
should be granted an exemption.
David W. Bateman
Mr. Bateman holds a class A commercial driver's license (CDL) from
the state of Minnesota. He has driven intrastate for the past 14 years,
including driving dump trucks and tractor trailer trucks. He would like
to drive tractor trailer trucks in interstate commerce, if he is
granted an exemption.
William B. Britt, Jr.
Mr. Britt holds a class D driver's license from the state of
Tennessee. Class D has a for-hire endorsement that allows a person to
drive vehicles such as limousines and taxis. He operates his personal
vehicle in his job as a repairman. He would like to obtain a CDL and
drive passenger buses, if granted an exemption.
Ernest W. Brown
Mr. Brown holds a class D driver's license from the state of
Kentucky. He would like to obtain a CDL and drive CMVs greater than
26,001 pounds in interstate commerce, if granted an exemption.
Cody J. Campbell
Mr. Campbell holds a class D driver's license from Louisiana. He
currently is a ``light duty driver,'' driving a tractor. He would like
to obtain a CDL and drive heavy equipment such as a dump truck, or rig
truck with a trailer, if granted an exemption.
Tyjuan M. Davis
Mr. Davis holds a class D driver's license from the state of
Florida. His family is in the trucking business and he would like to
obtain a class A CDL and drive tractor trailers in interstate commerce,
if granted an exemption.
Randall R. Doane
Mr. Doane holds a class AM CDL from the state of Texas. He has
logged over 250,000 miles driving trucks in interstate commerce prior
to failing his hearing test recently. He has experience driving double/
triple trailers, tankers and hazardous material transport. He is
currently permitted to drive a CMV in intrastate commerce. He would
like to return to driving CMVs in interstate commerce, if granted an
exemption.
Allen W. Estes
Mr. Estes holds a class B CDL from the state of Louisiana. He has
driven a bus transporting students to and from school since 1990. He
would like to obtain a CDL so that he can transport students to events
outside of Louisiana, if granted an exemption.
Leslie A. Fairbanks
Mr. Fairbanks held a class A CDL driver's license from the state of
Minnesota from 2001 until 2010, when he failed his hearing test. During
that time he drove a variety of tractor trailer trucks in interstate
commerce. He would like to obtain a CDL and return to driving tractor
trailer trucks, if he is granted an exemption.
Edward T. Geariety
Mr. Geariety held a class A CDL from the state of Minnesota from
1996 until 2011, when he failed his hearing test. During that time he
drove large trucks carrying stone from a quarry to customers. He would
like to return to driving CMVs in interstate commerce, if granted an
exemption.
Donald W. Gordon
Mr. Gordon holds a class CM driver's license from the state of
Pennsylvania. He operates a mini-van as an independent contractor
picking up and delivering materials. He would like to obtain a CDL and
drive CMVs for a national carrier, if granted an exemption.
William Edward Haab
Mr. Haab holds a class D driver's license from the state of
Louisiana. He is interested in obtaining a CDL and pursuing a career in
commercial trucking, if granted an exemption.
Charles L. Harper
Mr. Harper holds a driver's license from the state of Washington.
He has driven rental vehicles and a 12-seat van for a group home. He
would like to obtain a CDL and have the opportunity to drive CMVs in
interstate commerce, if granted an exemption.
Cornelio Hernandez
Mr. Hernandez holds a driver's license from the state of
California. He has enrolled in a driving course for a class B CDL, but
was unable to complete it as he did not pass the hearing test. He would
like to obtain a class A or B CDL to pursue work driving CMVs in
interstate commerce driver, if granted an exemption.
Alvin L. Johnson
Mr. Johnson holds a class CM driver's license from the state of
Georgia. He would like to attend driving school to obtain a CDL and
drive CMVs in interstate commerce, if granted an exemption.
Jerry D. Jones
Mr. Jones holds a class C CDL from the state of Texas. He has 7
years' experience driving a variety of forklifts for a construction
company. He would like to pursue opportunities driving CMVs in
interstate commerce, if granted an exemption.
[[Page 7481]]
James E. Karr
Mr. Karr holds a class DM driver's license from the state of
Kentucky. He would like to obtain a CDL and seek employment
opportunities driving CMVs in interstate commerce, if granted an
exemption.
Lorin W. King
Mr. King holds a class D driver's license from the state of
Oklahoma. The class D license permits one to drive regular automobiles
and trucks. He has experience driving single trailer vehicles with
airbrakes. He would like to obtain a CDL and seek employment
opportunities driving CMVs in interstate commerce, if granted an
exemption.
Christopher Kuller
Mr. Kuller holds a class M driver's license from the state of
Indiana. In the past, he held a CDL and hazmat license, and drove in
interstate commerce for 14 years, until he was unable to pass the DOT
hearing test. He would like to obtain a CDL and return to driving CMVs
in interstate commerce, if granted an exemption.
Julio Cesar Medrano
Mr. Medrano holds a driver's license from the state of Washington.
He is currently a student majoring in diesel technology, graduating in
May 2012. Most job descriptions for diesel engine technicians include a
requirement that he holds a CDL, due to the need to pick up and drive
trucks back to the shop for repair. He would like to obtain a CDL and
drive CMVs in interstate commerce, if granted an exemption.
Hal A. Miller
Mr. Miller holds a class C driver's license from the state of Iowa.
A class C allows the operation of vehicles under 26,000 pounds. He has
experience operating a Ryder rental truck and personal farm tractors.
He would like to obtain a CDL and drive CMVs in interstate commerce, if
granted an exemption.
Kathy K. Miller
Ms. Miller holds a class C driver's license from the state of Iowa.
She has experience driving students to and from local activities. She
is limited at work due to her not being able to pass the hearing test
and obtain a DOT medical card. She would like to obtain a CDL and drive
CMVs in interstate commerce, if granted an exemption. She is interested
in career opportunities with package delivery companies.
Brian J. Minch
Mr. Minch holds a driver's license from the state of New Hampshire.
He currently drives super duty pick-up trucks for landscape and
construction companies. He would like to obtain a CDL and drive CMVs in
interstate commerce, if granted an exemption.
Larry J. Moss
Mr. Moss holds a driver's license from the state of California. He
currently works for a delivery and hauling service, driving trucks and
often pulling a trailer. He would like to attend trucking school,
obtain a CDL and drive CMVs in interstate commerce, if granted an
exemption.
Leslie R. O'Rorke
Mr. O'Rorke holds a class D driver's license from the state of
Illinois. He has experience driving super duty pick-up trucks with a
trailer and dump trucks for a tree service company. He would like to
obtain a CDL and drive CMVs in interstate commerce, if granted an
exemption.
Timothy A. Parker
Mr. Parker holds a class C driver's license from the state of
California. The class C license in California allows one to operate a
traditional two-axle vehicle. He has experience operating 18-wheel
trucks as well as forklifts. He would like to obtain a CDL so he can
drive the tractor trailer trucks in interstate commerce, if granted an
exemption.
Gregory M. Potter
Mr. Potter holds a class C driver's license from the state of
Texas. He has experience driving a company van and rental trucks towing
a trailer. He would like to obtain a class A CDL to drive tanker trucks
in interstate commerce, if granted an exemption.
Gerson P. Rameriez
Mr. Rameriez holds a class D driver's license from the state of
Montana. He has experience driving a dump truck towing a trailer. He
also drove a truck for five years while working as a painter. He would
like to obtain a class A CDL and attend a trucking school in Montana,
if granted an exemption.
Jeremy Reams
Mr. Reams holds a class D driver's license from the state of
Kentucky. The class D is valid for any single motor vehicle, and a
trailer with weights not greater than 26,000 pounds. He has experience
driving 24-foot moving trucks, fifth wheel vehicles and has hauled
ATV's for personal use. He would like to obtain a CDL to drive CMVs in
interstate commerce, if granted an exemption.
Robert R. Rotondi
Mr. Rotondi holds a driver's license from the state of South
Carolina. He has experience driving rental trucks and forklifts. He
currently owns a 12-foot trailer he uses to tow his motorcycle. He
would like to obtain a class A or B CDL and drive CMVs in interstate
commerce, if granted an exemption.
Daniel Schoultz
Mr. Schoultz holds a class C driver's license from the state of
Pennsylvania. He has 25 years' experience driving trucks, but he is
currently not able to pass the DOT hearing test. He would like to
obtain a CDL again and drive CMVs in interstate commerce, if granted an
exemption.
Stanley W. Shields
Mr. Shields holds a class D driver's license from the state of
Kentucky. He would like to obtain a CDL and to seek employment
opportunities as a CMV driver, if granted an exemption.
James M. Skinner
Mr. Skinner holds a driver's license from the state of Florida that
allows him to drive any non-commercial vehicle less than 26,001 pounds.
He has experience driving rental trucks and towing rental trailers. He
would like to obtain a class A CDL and drive an interstate tractor
trailer weighing over 26,001 pounds with airbrakes, if granted an
exemption.
Ronald J. Taylor
Mr. Taylor holds a class C driver's license from the state of
Texas. He is currently a student, but would like to seek opportunities
in driving. He would like to obtain a CDL to drive CMVs in interstate
commerce, if granted an exemption.
Justin J. Trethewey
Mr. Trethewey holds a class C chauffeur license from the state of
Michigan. He is starting his own transit business after working as a
chauffeur. He would like to obtain a CDL and tow a gooseneck trailer to
transport cars, recreational vehicles or small trailers, if granted an
exemption.
Gilbert J. Valdez
Mr. Valdez holds a driver's license from the state of Rhode Island.
He currently works part-time and would like to obtain a CDL to seek
employment opportunities driving CMVs in interstate commerce, if
granted an exemption.
[[Page 7482]]
Mark L. Valimont
Mr. Valimont holds a class C driver's license from the state of
Texas. He is currently a package handler. He has 13 years' experience
driving dump trucks and three years' experience driving a tractor. He
would like to obtain a CDL and drive CMVs in interstate commerce, if
granted an exemption.
Kevin C. Willis
Mr. Willis holds a class C driver's license from the state of
California. He has held a FAA Private Pilot Certificate since 2006 and
flies private planes that weigh up to 12,500 pounds. He would like to
obtain a CDL and pursue employment opportunities in the commercial
transportation business, if granted an exemption.
James R. Wilson
Mr. Wilson holds a class C driver's license from the state of
Georgia. He has experience driving forklifts and a super duty pickup
truck for a private employer. He would like to obtain a CDL and drive
CMV's in interstate commerce, if granted an exemption.
Holly Cameron Wright, Jr.
Mr. Wright holds a class C driver's license from the state of North
Carolina. He has experience driving forklifts and commercial vehicles
at his family-owned business site. He would like to obtain a CDL and
drive CMVs in interstate commerce, if granted an exemption.
D. Comments
In response to the notice, FMCSA received 570 comments.
Granting the Exemptions on a Trial Basis
The American Trucking Associations (ATA) acknowledged the growing
need in the industry for drivers and the difficulty in finding
qualified drivers. Given this information, ``ATA believes that it is in
the best interest of the FMCSA, the trucking industry, society and
highway safety to grant the requested exemptions, with the following
stipulations:
(a) Granting exemptions to these 40 drivers would be viewed as a
temporary, single instance measure, until the proposed study was
completed;
(b) In granting the exemptions, FMCSA should compel the applicants
to participate in a study about safety performance, and
(c) If the study indicates that the drivers perform safely, that
FMCSA should initiate rulemaking to change the current standard.
FMCSA Response: FMCSA notes that the ATA is interested in having
more qualified drivers who would otherwise not be qualified due to
their hearing impairment. However, FMCSA does not plan to implement the
ATA proposal. FMCSA does not believe it would be beneficial to future
applicants to restrict exemptions to a two-year, non-renewable process
as part of a proposed new program. The FMCSA's 2008 Evidence Report
found no increase in crash risk among hearing impaired drivers, and the
Agency believes that additional studies could simply delay drivers
receiving a CDL and prove costly to the government without providing
meaningful additional safety to the driving public.
No Ad hoc Exemptions
The Advocates for Highway and Auto Safety (Advocates) stated that
they ``suggest it is time for FMCSA to engage the process to revise the
standards rather than short-circuit those procedures in order to grant
ad hoc exemptions.'' They further state their concern that the only
scientific evidence presented was in connection with the FMCSA Hearing
Evidence Report. They state that the 2008 Evidence Report is not a
research study, but rather a review and evaluation of several prior
studies related to hearing and drivers.
FMCSA Response: The Agency does not believe a new scientific study
is necessary to make a determination concerning the exemption
applications. The 2008 Evidence Report found that previous studies by
various researchers did not provide evidence to support the contention
that individuals with hearing deficits are at an increased risk for a
motor vehicle crash. And there is no basis for concluding that a new
study would yield different results. Also, a number of States allow
hearing impaired CMV drivers. In fact, several of the drivers discussed
in this notice already have experience as CMV drivers. Based on the
available literature, and the safe driving experience of these
individuals, the Agency believes granting the exemption is appropriate.
FMCSA evaluates each driver on a case-by-case basis and also
investigates the past driving/violation record to ensure an acceptable
level of safety.
While the Agency appreciates Advocates' suggestion that the Agency
should revise the standards rather than grant ad hoc exemptions, the
rulemaking process is too lengthy to afford relief to the individuals
affected here. With no specific data to show that hearing impaired or
deaf drivers are a danger to the driving public, granting these
exemptions will provide an opportunity to drivers to enter the trucking
industry or further pursue driving careers.
FMCSA has received a petition for rulemaking from NAD formally
requesting that the Agency eliminate the hearing standard under 49 CFR
Part 391. A copy of the petition, submitted in accordance with 49 CFR
part 389 (Rulemaking Procedures--Federal Motor Carrier Safety
Regulations) has been placed in the docket referenced at the beginning
of this notice. The Agency will consider NAD's petition in accordance
with the rules under 49 CFR part 389 and issue a decision on the matter
at a later date. If the Agency grants the petition, it would initiate a
rulemaking seeking public comment on proposed changes to the
regulations.
Concerns About Exemptions for Bus Drivers With Passengers
The American Bus Association (ABA) submitted comments stating their
concerns regarding allowing hearing impaired or deaf drivers to drive
buses with passengers. They stated ``The ABA's opposition to the NAD's
application is bottomed on the tasks a CMV motorcoach driver must
fulfill while responsible for up to fifty-five passengers in a
motorcoach.'' They further state:
``While it may be true, as NAD contends, that technology may keep
hearing impaired drivers from being `hampered' by the loss of
hearing, that rationale cannot apply when a CMV driver is
transporting passengers. For CMV motorcoach drivers piloting the
vehicle is only a part of the driver's duties. Drivers with a `P'
endorsement may be required to interact with passengers in any
number of ways that requires the driver to successfully pass the
hearing requirement in 49 CFR 391.''
They oppose the application for exemption to the extent that the
exemption would allow any of the 40 applicants to obtain a CDL with a
passenger endorsement or in any way qualify them to operate a
motorcoach in interstate commerce.
FMCSA Response: The Agency acknowledges ABA's concerns about the
need for motorcoach drivers to communicate with the passengers in the
event of an emergency. Motorcoach drivers are responsible for the
safety of passengers and that the driver must be able to hear any sign
of passenger distress. Therefore, the terms and conditions for the
exemptions would not allow the hearing impaired drivers to operate a
motorcoach with passengers in interstate commerce.
[[Page 7483]]
Not Safe for the Driving Public To Grant These Exemptions
The Agency received an additional nine comments from private
citizens and advocacy groups expressing their concern and asking FMCSA
not to grant these exemptions. All of the these comments simply
expressed that in their opinion they felt it was a safety issue, and
they asked FMCSA not to grant any of the 40 exemptions.
FMCSA Response: The Agency acknowledges these comments and their
concerns. However, as previously stated there is no specific scientific
data to show that hearing impaired drivers are a higher safety risk
than other drivers. Also, several States already allow hearing impaired
individuals to operate commercial vehicles in intrastate commerce and
most, if not all States allow such individuals to operate passenger
cars.
Support for Applicants and the Exemptions
The FMCSA received 505 comments from individuals in support of the
exemption applications. Most of them stated that the applicants should
``be granted unrestricted exemptions from the hearing requirements''
and cited evidence from the FMCSA's 2008 Executive Study of the hearing
requirement and that it shows there is not an increase in crash risk
for hearing impaired drivers. The letter also states that they strongly
feel these deaf drivers should be able to drive any type of vehicle.
Some of the commenters stated that they would like FMCSA to allow
all drivers with hearing impairment to be able to obtain a CDL. They
state that with modern technology, such drivers can communicate without
difficulty.
A number of the comments stated that they believed FMCSA was
discriminating against deaf drivers by prohibiting them from working in
the trucking industry. Others stated that they thought that hearing
impaired drivers were safer drivers and not going to be distracted by
conversations, cell phones and radio noise. Others stated that with
modern technology, there was not a hearing requirement in their
opinion. Additionally, there were comments that other countries allow
hearing impaired drivers to operate CMVs and that some States offer a
waiver to hearing impaired drivers for intrastate driving.
The FMCSA also received an additional 43 comments in support of
these exemptions from advocacy groups. These included comments from:
the Nebraska Commission for the Deaf and Hard of Hearing; Regional
Center for Independent Living; First People of GA; and the Commonwealth
of Massachusetts, Department of Mental Health. All stated their belief
that granting these exemptions is the right thing to do at this time.
In addition, the Agency received a comment of support from the
National Association of the Deaf, the organization that submitted the
application on behalf of the drivers. NAD stated that it
``unequivocally supports the granting of a full exemption to each of
the 45 drivers.'' They have a concern regarding the validity of the
``forced whisper test'' to assess hearing and cite FMCSA's 2008
Evidence Report. They state that the report raised questions about the
validity of the same test. They also called for the removal of the
hearing requirement altogether from FMCSA's physical qualification
standards.
The U.S. Equal Employment Opportunity Commission (EEOC) believes
granting the exemptions would be consistent with the Americans with
Disabilities Act (ADA). EEOC ``urges FMCSA to give due consideration to
the results of the 2008 hearing loss study as it represents current and
objective evidence that will help the agency determine whether a driver
who cannot meet the hearing standard should be permitted to operate a
CMV in interstate commerce.'' They further urged the Agency to adopt a
flexible and comprehensive approach to be able to obtain a CDL.
Deaf Truckers United stated that drivers who are hearing impaired
rely on their other heightened senses such as vision and touch. They
state that these drivers are more keenly aware of these senses and that
they are able to pick up things that hearing drivers miss. They also
ask that the hearing requirement be removed from 49 CFR Part 391.
FMCSA Response: FMCSA acknowledges support for these exemptions.
The Agency carefully reviewed all the comments about every individual.
As stated above, the rulemaking process is too lengthy to afford relief
to the individuals affected here. FMCSA has received a petition for
rulemaking from NAD formally requesting that the Agency eliminate the
hearing standard under 49 CFR Part 391. The Agency will consider the
petition in accordance with the rules under 49 CFR Part 389, and issue
a decision on the matter at a later date. If the Agency grants the
petition, it would initiate a rulemaking seeking public comment on
proposed changes to the regulations.
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 part 391.
Conclusion
The Agency is granting exemptions from the hearing standard, 49 CFR
391.41(b)(11), to 40 individuals based on a thorough evaluation of each
driver's qualifications, safety experience, and medical condition.
Safety analysis of information relating to these 40 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. By granting the exemptions,
the CMV industry will gain 40 additional CMV drivers. 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 40 drivers for a period of 2 years with
annual medical certification required: David W. Bateman (MN); William
B. Britt (TN); David W. Brown (ME); Ernest W. Brown (KY); Cody J.
Campbell (IA); Tyjuan M. Davis (FL); Randall R. Doane (TX); Allan W.
Estes (LA); Leslie A. Fairbanks (MN); Edward T. Geariety (NY); Donald
W. Gordon (PA); William Edward Haab (LA); Charles L. Harper (WA);
Cornelio E. Hernandez (CA); Alvin Leo Johnson (GA); Jerry D. Jones
[[Page 7484]]
(TX); James Karr (KY); Christopher Kuller (PA); Lorin W. King (OK);
Julio Cesar Medrano (WA); Hal A. Miller (IA); Kathy K. Miller (IA);
Brian I. Minch (NH); Larry J. Moss (CA);Lesley R. O'Rorke (IL); Timothy
A. Parker (CA); Gregory M. Potter (TX); Gerson P. Ramirez (MT); Jeremy
Reams (KY); Robert R. Rotondi (SC); Daniel Schoultz (PA); Stanley W.
Shields (KY); James M. Skinner (FL); Ronald J. Taylor (TX); Justin J.
Trehtewey (MI); Gilbert Valdez (RI); Mark L. Valimont (TX); Kevin C.
Wllis (CA); James R. Wilson (GA); Holly Cameron Wright Jr. (NC) from
the prohibition of CMV operations by persons with who do not meet the
hearing requirement. If the exemption is still in effect at the end of
the 2-year period, the person may apply to FMCSA for a renewal under
procedures in effect at that time.
Issued on: January 29, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-02266 Filed 1-30-13; 4:15 pm]
BILLING CODE 4910-EX-P
