Qualifications of Drivers; Applications for Exemptions; Hearing, 61809-61812 [2017-28128]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[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: https://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, [email protected], 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]
 BILLING CODE 4910-EX-P