Qualifications of Drivers; Applications for Exemptions; Hearing |
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Cathy F. Gautreaux
Federal Motor Carrier Safety Administration
29 December 2017
[Federal Register Volume 82, Number 249 (Friday, December 29, 2017)]
[Notices]
[Pages 61809-61812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-28128]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2014-0387; FMCSA-2016-0002]
Qualifications of Drivers; Applications for Exemptions; Hearing
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice.
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SUMMARY: The FMCSA announces its response to public comments regarding
the granting of exemptions from the hearing requirement in the Federal
Motor Carrier Safety Regulations (FMCSRs). Since February 2013, FMCSA
has granted a number of exemptions and published numerous Federal
Register notices requesting public comment on additional exemption
applications. This notice responds to the substantive comments we
received and announces our intention to continue granting additional
exemptions.
DATES: This notice is applicable on December 29, 2017.
ADDRESSES: You may search background documents or comments to the
docket for this notice, identified by docket numbers FMCSA-2014-0387
and FMCSA-2016-0002, by visiting the:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for reviewing documents and comments.
Regulations.gov is available electronically 24 hours each day, 365 days
a year; or
DOT Docket Management Facility (M-30): U.S. Department of
Transportation (DOT), 1200 New Jersey Avenue SE, West Building, Ground
Floor, Room 12-140, Washington, DC 20590-0001.
Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to better inform its rulemaking process. DOT
posts these comments, without edit, including any personal information
the commenter provides, to www.regulations.gov, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, 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 from 8:30 a.m. to 5 p.m.,
e.t., Monday through Friday, except Federal holidays. If you have
questions about viewing or submitting material to the docket, contact
Docket Services, telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Background
Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption
from the safety regulations 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 current
provisions of the Federal Motor Carrier Safety Regulations (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.
The 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).
On May 25, 2012, FMCSA published a notice requesting public comment
on the application from the National Association of the Deaf (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 this notice, and 40 of the 45 applicants were
granted exemptions (78 FR 7479). Since that time, FMCSA has granted
more than 300 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.
On September 21, 2015, FMCSA published a notice of receipt of
applications from 14 individuals requesting an exemption from the
hearing requirement to operate a CMV in interstate commerce (80 FR
57043). The Agency requested comments from all interested parties on
whether a driver who cannot meet the hearing standard should be
permitted to operate a CMV in interstate commerce. Further, the Agency
requested comments on whether a driver who cannot meet the hearing
standard should be limited to operating only certain types of vehicles
in interstate commerce, for example, vehicles without airbrakes. The
public comment period ended on October 21, 2015, and four comments were
received, two of which were from drivers in support of hearing
exemptions. The other two commenters were the Commercial Vehicle
Training Association (CVTA) and the President of the Iowa Association
of the Deaf.
On August 1, 2016, FMCSA published a notice of receipt of
applications from 33 individuals requesting an exemption from the
hearing requirement to operate a CMV in interstate commerce (81 FR
50594). The Agency requested comments from all interested parties on
whether a driver who cannot meet the hearing standard should be
permitted to operate a CMV in interstate commerce. The public comment
period ended on August 31, 2016, and one comment was received from the
Florida Department of Highway Safety and Motor Vehicles.
II. Discussion of Comments Received
Below is a composite discussion of comments received in response to
the notices identified above. The CVTA stated that FMCSA should not
grant
[[Page 61810]]
exemptions to hard of hearing and deaf individuals for airbrake-
equipped vehicles until more research can be conducted to determine
safety outcomes and determine whether safe methods of training can be
devised without putting the public and training staff in jeopardy on
the open road. They support the granting of exemptions to individuals
operating vehicles without airbrakes since the evidence FMCSA relied
upon for granting previous hearing exemptions is based on a study of
hard of hearing and deaf individuals in non-airbrake vehicles. CVTA's
comments focused specifically on safety issues and complications unique
to training providers.
CVTA commented that FMCSA did not cite any report, study, or other
documentation substantiating that a hard of hearing or deaf individual
can safely operate a CMV with airbrakes, or point to a technology or
accommodation that would enable operation that is as safe as that of a
driver without a hearing impairment. They stated that FMCSA has not
examined the relevant data and demonstrated a rational connection
between the data and the decision made to grant an exemption. CVTA
believes that the Agency has not provided adequate empirical support
for granting hearing exemptions based on the ``Executive Summary on
Hearing, Vestibular Function and Commercial Motor Driving Safety'' (the
2008 Evidence Report), current medical literature, and the applicant's
driving record.
CVTA believes that until such evidence demonstrating safety is
obtained and presented, all non-CDL hard of hearing and deaf
individuals seeking an exemption should be restricted to non-airbrake
vehicles. In addition, CVTA believes that, in the absence of such
evidence, the granting of any exemption involving airbrake vehicles
likely would constitute an arbitrary and capricious determination by
FMCSA. They argue that, in order for an agency's assessment to not run
afoul of the ``arbitrary and capricious'' standard for judicial review
set forth by the Administrative Procedure Act (APA), the agency must
engage in reasoned decision making by examining the relevant data and
articulating a satisfactory explanation for its action. Further, there
must be a rational connection between the facts found and the choice
made. They believe that FMCSA has not satisfied this standard.
CVTA noted several concerns related to the safety and liability of
training and testing hard of hearing and deaf individuals. CVTA stated
that the limitations and delays that arise when communicating with
these drivers are significant and can result in an unsafe training
environment. They believe that training hard of hearing and deaf
drivers is a safety risk because CVTA member institutions include
behind-the-wheel, on-the-road training which requires instantaneous
communication while driving, for which in-cab signers or hand signals
would be ineffective and unsafe. In addition, they believe that hard of
hearing and deaf commercial drivers are unsafe due to their inability
to hear sirens, air leaks or other sounds critical to safe operation.
CVTA states that this lag time significantly increases risk of harm for
the instructor, trainee, signer, and the public because the time
required to give, and receive, communication is longer than the
appropriate time needed to avert disaster, especially in a split-second
emergency. In addition, requiring a hard of hearing or deaf trainee to
avert his/her eyes to receive communication rather than focusing on the
road creates an unsafe lag time and distracted driving.
CVTA pointed out the legal liability training organizations face
for not accepting hard of hearing and deaf students into their school
on the basis that no accommodations exist or the student would be
unable to safely and successfully complete the course. Conversely, CVTA
also noted the legal liability potentially precipitated by allowing an
individual to complete the course, knowing that the individual may be
unable to obtain certification due to factors such as the regulatory
prohibition of allowing interpreters during certain portions of CDL
testing.
Ms. Kathy Miller, President of the Iowa Association of the Deaf,
submitted comments in response to CVTA's comments. Ms. Miller stated
that all evidence supports the fact that drivers who can satisfy all
the physical qualification standards except hearing can safely operate
vehicles, including those with airbrakes, and should be granted hearing
exemptions. She points out that FMCSA's 2008 Evidence Report concluded
that an inability to satisfy the hearing requirement does not result in
any increased safety risk and that the actual experiences of hard of
hearing and deaf drivers, including many of the exemption applicants,
who already operate CMVs in intrastate commerce, confirms the accuracy
of the conclusions reached by FMCSA's Evidence Report. Ms. Miller
stated that she believes that drivers who are hard of hearing or deaf
do not face the same distractions on the road as do many hearing
drivers. She provided the example that drivers who are deaf or hard of
hearing are not distracted by conversations in the vehicle, the radio,
music, and ringing phones, and that when off the road, they can
communicate with the dispatcher using smart phone technologies. She
points out they have deaf truckers in Iowa with intrastate hearing
exemptions that have operated for many years with good driving skills
and without any accidents. She mentions that she is deaf and carries a
Class D Chauffer license and has held an intrastate hearing exemption
since 2013 without any accidents. Ms. Miller states that she believes
that hard of hearing and deaf drivers should be permitted to operate
any vehicle, and that they should not be limited to driving only
certain types of vehicles. She points out that DOT has never before
restricted drivers to a certain class of vehicle based on a disability
and should not do so for hard of hearing and deaf drivers.
The Florida Department of Highway Safety and Motor Vehicles
(FDHSMV) requested that the 30-day comment period be extended to 60
days, and its comments duplicated most of the comments received from
CVTA. The FDHSMV stated that, medically, ``deaf'' means severe hearing
loss with no functional hearing and that, without appropriate medical
information on the extent of hearing loss, the FDHSMV has no way to
know how to test these individuals. They pointed out that interpreters
are prohibited during the skills test under 49 CFR 383.133(c)(5) and
that applicants must respond to verbal commands and instructions in
English by the skills test examiner. Therefore, a person who is deaf is
unable to successfully complete the required skills test in accordance
with these regulations. The FDHSMV further noted that, along with other
States and the American Association of Motor Vehicle Administrators
(AAMVA), the organization has repeatedly sought guidance from FMCSA on
testing methodology and that FMCSA's position has been to not provide
such guidance because it would be setting a precedent that is in direct
conflict with FMCSA's regulatory position of providing guidance. FDHSMV
requested that, rather than grant ad hoc exemptions, FMCSA should
commission a study to determine whether deaf and hard of hearing
drivers pose additional risk to the motoring public. If the study
demonstrates that these drivers do not pose addition risk, and should
be exempted, FMCSA then should provide the States with a methodology
and
[[Page 61811]]
standards for testing these drivers to ensure safety is not
compromised.
FDHSMV also specifically mentioned airbrake-equipped vehicles as an
area of concern, recommending that FMCSA not entertain applications for
exemptions filed by hard of hearing and deaf individuals for purposes
of operating airbrake-equipped vehicles.
III. FMCSA Response
FMCSA does not agree with the suggestion to restrict exemption
applications from all hard of hearing and deaf individuals to non-
airbrake vehicles only, because such a restriction is not necessary.
The applicable regulation at 49 CFR 393.51(c) states that a CMV
equipped with service brakes activated by compressed air (airbrakes) or
a CMV towing a vehicle with service brakes activated by airbrakes must
be equipped with a pressure gauge and a warning signal. This regulation
also incorporates Federal Motor Vehicle Safety Standards (FMVSS) No.
121 S5.l.5, stating that the warning signal is required to be either:
(a) Visible within the driver's forward field of view, or (b) both
audible and visible. Given that the airbrake warning signal is visible
to hard of hearing and deaf individuals, no exemptions from or
modifications to section 393.51 are necessary for such individuals.
In reaching the decision to grant hearing exemption requests, FMCSA
considers available current scientific information and literature,
including the 2008 ``Evidence Report: Hearing, Vestibular Function and
Commercial Motor Vehicle Driver Safety'' (Evidence Report), and its own
internal data. 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.''
While a search of the literature still does not reveal any studies
analyzing crash risk among deaf and hard of hearing CMV drivers, the
FMCSA did review a 2014 doctoral dissertation by Birgitta Thorslund
from the Department of Behavioural Sciences and Learning at
Link[ouml]ping University, Sweden, entitled, ``Effects of Hearing Loss
on Traffic Safety and Mobility.'' Dr. Thorslund concluded that
``drivers with (hearing loss) cannot be considered an increased traffic
safety risk. . . .'' In fact, Dr. Thorslund noted, drivers with hearing
loss are more likely to be more cautious and adopt coping strategies
such as reducing speed, ``using a more comprehensive visual search
behavior,'' and avoiding distracting activities. This is corroborated,
albeit with minimal numbers, by FMCSA's own internal data. A 2016
Analysis Brief, ``Safety Performance of Drivers with Medical
Exemptions,'' analyzed the records of 218 CDL holders with hearing
exemptions. Drivers with hearing exemptions had a lower crash rate than
the national average, had a lower violation rate than the control
group, and had fewer driver out-of-service violations. FMCSA
acknowledges that the numbers involved in the comparison are small and
will endeavor to provide updated information as numbers grow.
To further support a decision to grant a hearing exemption, the
Agency reviews each applicant's driving record found in the Commercial
Driver's License Information System (CDLIS), for CDL holders, as well
as inspections recorded in the Motor Carrier Management Information
System (MCMIS). For non-CDL holders, the Agency reviews the driving
records from the State Driver's Licensing Agency (SDLA). The records
for each applicant who has been granted a hearing exemption demonstrate
that the driver has a safe driving history. Therefore, based upon the
information above, including individual driving histories, the Agency
believes that these drivers do not pose a risk to public safety and
that granting the exemption achieves a level of safety that is
equivalent to or greater than the level that would be achieved absent
such exemption.
As described above, most of CVTA's comments focused specifically on
safety issues and complications unique to CDL training providers. The
lack of any technology or accommodations that would enable CVTA's
member institutions to train hard of hearing and deaf drivers is not
evidence that FMCSA should no longer grant hearing exemptions or limit
these drivers to non-airbrake vehicles. As previously mentioned, FMCSA
is not aware of any report, study, or other documentation
substantiating that hard of hearing or deaf individuals are at an
increased risk of a crash and does not believe that any additional
studies are necessary.
There are several States that currently conduct CDL skills testing
on hard of hearing and deaf drivers, each utilizing different methods.
In an effort to make this information available to others, FMCSA is
working with the AAMVA to develop a resource guide for administering
the CDL skills test to hard of hearing and deaf drivers.
In response to CVTA's legal liability concerns, both public and
private CDL training organizations and SDLAs should understand the
requirements and prohibitions placed upon them by the Americans with
Disabilities Act and the Rehabilitation Act of 1973 pertaining to hard
of hearing and deaf individuals who have been granted an exemption by
FMCSA. Further, any entity receiving Federal funding from FMCSA is
required to comply with these laws under the terms of the grant
agreement. These entities are advised to consult with private counsel
in addressing their legal responsibilities and concerns.
While most of the FDHSMV's comments mirrored those of the CVTA,
they note two additional arguments as to why exemptions should not be
granted: First, that skills testing deaf and hard of hearing drivers
cannot be completed without violating the regulation prohibiting the
use of interpreters; and, second, that FMCSA should provide States with
a methodology and standards for skills testing deaf and hard of hearing
drivers. As noted, 49 CFR 383.133 prohibits interpreters during the
administration of the skills test and requires applicants to understand
and respond to verbal direction. This does not mean, however, that a
skills test cannot be accomplished with a deaf or hard of hearing
individual. 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.
Beyond the current regulations pertaining to skills testing CDL
[[Page 61812]]
applicants, it is not appropriate for FMCSA to mandate additional
standards or strict methodology. A State must, under 49 CFR
383.73(b)(1), require the applicant to pass a skills test in accordance
with subparts F, G, and H of 49 CFR part 383. These standards remain
the same for any CDL applicant, regardless of exemptions that may have
been granted by the agency. As to a specific methodology that would
apply to all States and all applicants, the FMCSA declines to apply a
``one size fits all'' solution. The question of reasonable
accommodation for a deaf or hard of hearing applicant is highly fact
specific, for both the applicant and the examining entity. The FMCSA
remains committed to its partnerships with AAMVA, the FDHSMV, and other
states working toward the development of best practices related to the
skills testing of deaf and hard of hearing drivers.
IV. Conclusion
FMCSA has considered the available current medical information and
literature and is not aware of any data to support the contention that
hard of hearing and deaf individuals are at an increased risk for a
crash. In addition, the comments discussed above do not include any
evidence that FMCSA should no longer grant hearing exemptions or limit
exempted drivers to non-airbrake vehicles. The Agency therefore will
continue to consider each application for a hearing exemption on an
individual basis and will continue exempting those drivers who do not
pose a risk to public safety when granting the exemption achieves a
level of safety that is equivalent to or greater than the level that
would be achieved absent such exemption.
Issued on: December 20, 2017.
Cathy F. Gautreaux,
Deputy Administrator.
[FR Doc. 2017-28128 Filed 12-28-17; 8:45 am]
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