National Association of the Deaf Petition for Rulemaking; Hearing Requirement for Commercial Motor Vehicle Drivers

 
CONTENT
Federal Register, Volume 84 Issue 241 (Monday, December 16, 2019)
[Federal Register Volume 84, Number 241 (Monday, December 16, 2019)]
[Proposed Rules]
[Pages 68386-68389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26942]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Chapter III
[Docket No. FMCSA-2019-0151]
National Association of the Deaf Petition for Rulemaking; Hearing
Requirement for Commercial Motor Vehicle Drivers
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Petition for rulemaking; request for public comments.
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SUMMARY: FMCSA requests public comments on the National Association of
the Deaf's (NAD) petition for rulemaking to rescind the requirement for
interstate drivers of commercial motor vehicles (CMVs) to be able to
hear. NAD also requests that FMCSA amend the requirement that
interstate drivers be able to speak, and the rule prohibiting the use
of interpreters during the administration of the commercial driver's
license (CDL) skills test. NAD believes the origins of the hearing
requirement dates to a time of misguided stereotypes about the
abilities and inabilities of deaf and hard of hearing individuals and
the rules should now be changed.
DATES: Comments must be submitted by February 14, 2020.
ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2019-0151 using any of the following methods:
[[Page 68387]]
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between
9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
     Fax: (202) 493-2251.
    To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section for instructions on submitting
comments.
FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief,
Medical Programs Division, Federal Motor Carrier Safety Administration,
1200 New Jersey Avenue SE, Washington, DC 20590-0001, by telephone at
(202) 366-4001, or by email at [email protected]. If you have
questions on viewing or submitting material to the docket, contact
Docket Services, telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION:
A. Submitting Comments
    If you submit a comment, please include the docket number for this
document (Docket No. FMCSA-2019-0151), indicate the specific section of
this document to which each comment applies, and provide a reason for
each suggestion or recommendation. You may submit your comments and
material online or by fax, mail, or hand delivery, but please use only
one of these means. FMCSA recommends that you include your name and a
mailing address, an email address, or a telephone number in the body of
your document so that FMCSA can contact you if there are questions
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov,
put the docket number, FMCSA-2019-0151, in the keyword box, and click
``Search.'' When the new screen appears, click on the ``Comment Now!''
button and type your comment into the text box on the following screen.
Choose whether you are submitting your comment as an individual or on
behalf of a third party and then submit.
    If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
    FMCSA will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments. FMCSA may issue a final rule at any time after the close of
the comment period.
Confidential Business Information
    Confidential Business Information (CBI) is commercial or financial
information that is customarily not made available to the general
public by the submitter. Under the Freedom of Information Act (5 U.S.C.
552), CBI is eligible for protection from public disclosure. If you
have CBI that is relevant or responsive to this document, it is
important that you clearly designate the submitted comments as CBI.
Accordingly, please mark each page of your submission as
``confidential'' or ``CBI.'' Submissions designated as CBI and meeting
the definition noted above will not be placed in the public docket of
this document. Submissions containing CBI should be sent to Brian
Dahlin, Chief, Regulatory Evaluation Division, Federal Motor Carrier
Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-
0001. Any commentary that FMCSA receives that is not specifically
designated as CBI will be placed in the public docket for this
document.
B. Viewing Comments and Documents
    To view comments, as well as any documents mentioned in this
preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2019-0151 in the
keyword box, and click ``Search.'' Next, click the ``Open Docket
Folder'' button and choose the document to review. If you do not have
access to the internet, you may view the docket online by visiting the
Docket Management Facility 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.
C. 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.transportation.gov/privacy.
I. Background
A. The Hearing Standard and the Granting of Exemptions
    The current hearing standard under 49 CFR 391.41(b)(11) 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).\1\
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    \1\ A hearing requirement has been included in the physical
qualifications for commercial drivers since 1940. Cf. 4 FR 2294,
2295 (June 7, 1939).
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    On May 25, 2012, FMCSA published a notice requesting public comment
on the application from NAD for an exemption from the regulatory
requirement in 49 CFR 391.41(b)(11) on behalf of 45 deaf drivers (77 FR
31423). The Agency received 570 comments in response to that notice,
and 40 of the 45 applicants were granted exemptions (78 FR 7479). Since
that time, FMCSA has granted more than 450 hearing exemptions to
individuals who do not meet the hearing standard. In doing so, FMCSA
has published numerous Federal Register notices announcing receipt of
hearing exemption applications and requesting public comment, prior to
granting the individual exemptions. See, e.g., 84 FR 5544 (February 21
2019); 84 FR 21392 (May 14, 2019).
B. Speaking Requirement for Interstate Drivers
    Currently, Sec.  391.11(b)(2) requires that interstate CMV drivers
read and speak the English language sufficiently to converse with the
general public, to understand highway traffic signs and signals in the
English language, to respond to official inquiries, and to make entries
on reports and records.
    The requirement to speak was adopted on December 23, 1936 by the
Interstate Commerce Commission (ICC), the Federal agency responsible
for motor carrier safety prior to the establishment of the U.S.
Department of Transportation. (1 M.C.C. 1, at 18-19).
    On May 27, 1939, the ICC made certain changes and additions to the
Motor Carrier Safety Regulations, including elimination of the
exceptions granted by the original rules for those drivers unable to
read and speak English. As stated in that notice, ``The intent of the
Commission to require such ability of all drivers in this service has
been unmistakable since 1937, and the intervening period of more than
two years is regarded as sufficient to justify the removal of the
exception.'' (14
[[Page 68388]]
M.C.C. 669, at 675). The requirements have remained essentially
unchanged since the 1930s.
C. Prohibition Against Interpreters During the CDL Skills Test
    On May 9, 2011 (76 FR 26854), FMCSA published a final rule amending
the CDL knowledge and skills testing standards. The final rule included
prohibitions against the use of interpreters during the administration
of the CDL knowledge and skills tests. Section 383.133(b)(3) provides
that the CDL knowledge tests may be administered in written form,
verbally, or in automated format and can be administered in a foreign
language, provided that no interpreter is used in administering the
test. Section 383.133(c)(5) prohibits interpreters during the
administration of skills tests. Paragraph (c)(5) also states that
applicants must be able to understand and respond to verbal commands
and instructions in English by a skills test examiner. Neither the
applicant nor the examiner may communicate in a language other than
English during the skills test.
D. NAD Petition To Change the Rules
    NAD petitioned FMCSA to change its safety regulations so that deaf
and hard of hearing individuals would be allowed to operate CMVs in
interstate commerce. Although FMCSA has granted exemptions from Sec.
391.41(b)(11) concerning physical qualifications for deaf and hard of
hearing individuals as noted above, NAD believes the rule should be
changed to eliminate the regulatory barrier to these individuals
operating CMVs in interstate commerce. NAD also contends that both the
hearing requirement for physical qualification to operate a commercial
vehicle and the speaking requirement are violations of the
Rehabilitation Act of 1973.\2\ A copy of the petition is included in
the docket referenced at the beginning of this document.
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    \2\ 29 U.S.C. 701, et seq.
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    In granting the exemptions discussed above, the Agency did not
provide relief from the requirement that drivers be able to communicate
in English and the prohibition against interpreters during the CDL
knowledge and skills tests. However, the Agency has provided
clarifications on how these requirements should be applied in the
context of deaf or hard of hearing individuals.
    On December 29, 2017 (82 FR 61809), FMCSA published a notice
announcing its response to certain substantive comments submitted to
one of the notices regarding the granting of exemptions from the
hearing requirement for multiple drivers. The Agency explained that the
restriction under 49 CFR 383.133(c)(5) does not mean that a skills test
cannot be accomplished with a deaf or hard of hearing individual. The
2017 notice stated:
    Generally, FMCSA has addressed this issue in formal guidance,
which is found at Question 7 to 49 CFR 391.11(b)(2) (published on
October 1, 2014 at 79 FR 59139). The guidance is premised on the
position that the term ``speak,'' as used with the associated rule,
should not be construed so narrowly as to find a deaf driver who
does not use oral communication in violation of that regulation.
Similarly, the term ``verbal'' in 49 CFR 383.133 should not be
construed so narrowly when examiners are administering skills tests
to applicants with a hearing exemption, and should be applied to
permit communication in forms other than verbal. If the actual
skills tests are administered without the aid of an interpreter, the
State is in compliance with 49 CFR 383.133(c)(5). Additionally, as
noted above, there are no prohibitions against the use of an
interpreter prior to the skills test generally or in between the
three segments of the test. Use of a skills test examiner who is
capable of communicating via American Sign Language is also an
option.
II. Requests for Public Comments
    After the publication of the December 29, 2017, notice, several
motor carriers and CDL training providers shared with FMCSA their
concerns about safety when it comes to behind-the-wheel training of
deaf or hard of hearing individuals. Behind-the-wheel training requires
communication between the instructor and the student while the vehicle
is in motion under a variety of conditions. This includes operating on
public roads in traffic, and at highway speeds. Given that deaf and
hard of hearing individuals rely on sign language, written messages or
other visual indicators, training providers have expressed concerns
about safety when the students take their eyes off the road to focus on
communication with the instructor.
    Motor carriers also raised concerns about work-place safety with
such individuals. Safety concerns include identifying effective
alternatives to audible alerts and warnings for hazardous conditions,
such as trucks backing around loading docks and driven around
terminals.
    The FMCSA requests public comments on NAD's petition for
rulemaking, with a focus on five areas of concern:
Safety During CDL Training
    FMCSA's hearing requirement is applicable to individuals who
operate CMVs (as defined in 49 CFR 390.5) in interstate commerce,
regardless of whether they are required to have a CDL. There are also
some regulatory exemptions from the physical qualification
requirements. See, generally, 49 CFR 390.3(f) and 391.2. Therefore,
some individuals seeking CDL training have not been, and would not be,
subject to the hearing standard. This includes, for example,
individuals that drive or plan to drive for Federal, State or local
government agencies that do not impose the same physical qualification
requirements on their employees, etc. What actions have CDL training
providers, including governmental entities providing such training,
taken to address the needs of CDL applicants seeking employment
opportunities in transportation sectors that are exempt from FMCSA's
physical qualifications standards and to what extent would these
practices be helpful to training providers preparing drivers to operate
in sectors subject to FMCSA's physical qualifications standards? How do
CDL training providers ensure safe operations during behind-the-wheel
training of deaf and hard of hearing individuals on public roads?
CDL Skills Test Administration
    With the granting of hearing exemptions as discussed above, some
State Driver Licensing Agencies (SDLAs) have raised concerns about
challenges administering the CDL skills test to deaf and hard of
hearing individuals. The SDLAs expressed concern that the prohibition
against interpreters during the skills test precludes the
administration of the tests if the CDL examiner is not capable of
communicating with sign language.
    In addition, SDLAs have expressed concerns about safety of
operations when the CDL examiner must communicate with the applicant
while the vehicle is in operation on a public road.
    FMCSA requests information from the SDLAs concerning challenges
their examiners have experienced administering the CDL skills test
under such circumstances and what accommodations, if any, have been
made to complete the skills test while complying with the prohibition
against the use of interpreters. The Agency also requests comment on
steps taken to address or minimize the time applicants must take their
eyes off the road to receive instruction or feedback from the CDL
examiner.
[[Page 68389]]
Workplace Safety
    FMCSA has statutory direction to ensure that operation of a CMV
does not have a deleterious effect on the health of CMV operators. To
consider the impact of a change in the hearing requirement on driver
health, the Agency requests comments from motor carriers about their
concerns about ensuring the safety of deaf and hard of hearing
individuals at facilities where trucks are loaded and unloaded, and
terminals at which trucks may be operated with workers walking around.
Under such scenarios, deaf or hard of hearing individuals would not be
able to hear audible alarms or signals of workplace hazards. The Agency
requests information about safety precautions that are being taken to
accommodate such individuals and the experiences of these employers
with workplace incidents and injuries.
Safety Impacts if FMCSA Grants NAD's Petition
    In consideration of the areas highlighted above, the Agency request
comments on whether the Agency should grant NAD's petition for
rulemaking, in whole or in part, and initiate a notice-and-comment
rulemaking proceeding. The Agency seeks information on whether a
regulatory change would significantly increase the number of
individuals seeking training and employment as interstate CMV drivers.
Also, would CDL training providers and motor carriers face additional
challenges if the population of deaf and hard of hearing individuals
seeking entry into the industry increased significantly?
Granting of Hearing Exemptions
    As noted above, the Agency has granted more than 450 hearing
exemptions since 2012. The exemptions cover a range of circumstances
necessitating relief from the hearing standard, from individuals with
CDLs in need of an exemption to allow them to operate in interstate
commerce, to individuals seeking a CDL to begin a career in the
interstate motor carrier industry. The exemptions also cover
individuals interested in operating CMVs for which a CDL is not
required. If FMCSA denies the NAD petition for rulemaking, should the
Agency continue granting exemptions, or consider limiting the
exemptions to certain categories such as individuals intending to
operate CMVs for which a CDL is not required, or individuals who
already hold a CDL?
    Issued under authority delegated in 49 CFR 1.87 on: December 10,
2019.
 Jim Mullen,
 Acting Administrator.
[FR Doc. 2019-26942 Filed 12-13-19; 8:45 am]
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