National Association of the Deaf Petition for Rulemaking; Hearing Requirement for Commercial Motor Vehicle Drivers, 68386-68389 [2019-26942]
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68386
Federal Register / Vol. 84, No. 241 / Monday, December 16, 2019 / Proposed Rules
Class A, B, C, D, and E airspace areas,
air traffic service routes, and reporting
points.
The Proposal
The FAA proposes an amendment to
Title 14 Code of Federal Regulations (14
CFR) part 71 to amend Class D, Class E
airspace designated as an extension to a
Class D surface area, and Class E
airspace extending upward from 700
feet or more above the surface at Boire
Field, Nashua, NH, by eliminating the
northwest extension of the airport due
to the cancellation of the NDB approach.
The FAA also proposes to update the
geographic coordinates of Boire Field
and Manchester VORTAC to coincide
with the FAA’s aeronautical database. In
addition, this action would recognize
the name change of Pepperell Airport
(formerly Sports Center Airport). Also,
an editorial change would be made
replacing the outdated term Airport/
Facility Directory with the term Chart
Supplement in the associated Class D
and E airspace legal descriptions for
Boire Field.
Class D and Class E airspace
designations are published in
Paragraphs 5000, 6004, and 6005,
respectively of FAA Order 7400.11D,
dated August 8, 2019, and effective
September 15, 2019, which is
incorporated by reference in 14 CFR
71.1. The Class D and E airspace
designations listed in this document
will be published subsequently in the
Order. FAA Order 7400.11, Airspace
Designations and Reporting Points, is
published yearly and effective on
September 15.
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Regulatory Notices and Analyses
The FAA has determined that this
proposed regulation only involves an
established body of technical
regulations for which frequent and
routine amendments are necessary to
keep them operationally current. It,
therefore: (1) Is not a ‘‘significant
regulatory action’’ under Executive
Order 12866; (2) is not a ‘‘significant
rule’’ under DOT Regulatory Policies
and Procedures (44 FR 11034; February
26, 1979); and (3) does not warrant
preparation of a Regulatory Evaluation
as the anticipated impact is so minimal.
Since this is a routine matter that will
only affect air traffic procedures and air
navigation, it is certified that this
proposed rule, when promulgated, will
not have a significant economic impact
on a substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
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Environmental Review
This proposal will be subject to an
environmental analysis in accordance
with FAA Order 1050.1F, paragraph 5–
6.5(a), ‘‘Environmental Impacts: Policies
and Procedures’’ prior to any FAA final
regulatory action.
effective during the specific dates and times
established in advance by a Notice to
Airmen. The effective date and time will
thereafter be continuously published in the
Chart Supplement.
Paragraph 6005 Class E Airspace Areas
Extending Upward From 700 Feet or More
Above the Surface of the Earth.
Lists of Subjects in 14 CFR Part 71
*
Airspace, Incorporation by reference,
Navigation (air).
ANE NH E5 Nashua, NH [Amended]
Boire Field, NH
(Lat. 42°46′57″ N, long. 71°30′51″ W)
That airspace extending upward from 700
feet above the surface within a 7.9-mile
radius of Boire Field.
The Proposed Amendment
In consideration of the foregoing, the
Federal Aviation Administration
proposes to amend 14 CFR part 71 as
follows:
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for part 71
continues to read as follows:
■
Authority: 49 U.S.C. 106(f), 106(g); 40103,
40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,
1959–1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of Federal Aviation
Administration Order 7400.11D,
Airspace Designations and Reporting
Points, dated August 8, 2019, and
effective September 15, 2019, is
amended as follows:
■
Paragraph 5000
Class D Airspace.
*
*
*
*
*
ANE NH D Nashua, NH [Amended]
Boire Field, NH
(Lat. 42°46′57″ N, long. 71°30′51″ W)
Pepperell Airport, MA
(Lat. 42°41′46″ N, long. 71°33′00″ W)
That airspace extending upward from the
surface to and including 2,700 feet MSL
within a 5-mile radius of Boire Field;
excluding that airspace within a 2-mile
radius of Pepperell Airport. This Class D
airspace area is effective during the specific
dates and times established in advance by a
Notice to Airmen. The effective date and time
will thereafter be continuously published in
the Chart Supplement.
Paragraph 6004 Class E Airspace
Designated as an Extension to Class D or E
Surface Area.
*
*
*
*
*
ANE NH E4 Nashua, NH [Amended]
Boire Field, NH
(Lat. 42°46′57″ N, long. 71°30′51″ W)
Manchester VORTAC
(Lat. 42°52′07″ N, long. 71°22′10″ W)
That airspace extending upward from the
surface within 1.1 miles on each side of the
Manchester VORTAC 231° radial extending
from the 5-mile radius to 8.4 miles northeast
of Boire Field. This Class E airspace area is
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*
*
*
*
Issued in College Park, Georgia, on
December 5, 2019.
Matt Cathcart,
Acting Manager, Operations Support Group,
Eastern Service Center, Air Traffic
Organization.
[FR Doc. 2019–26856 Filed 12–13–19; 8:45 am]
BILLING CODE 4910–13–P
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
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Petition for rulemaking; request
for public comments.
AGENCY:
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:
SUMMARY:
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Federal Register / Vol. 84, No. 241 / Monday, December 16, 2019 / Proposed Rules
• Federal eRulemaking Portal: https://
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 fmcsamedical@
dot.gov. If you have questions on
viewing or submitting material to the
docket, contact Docket Services,
telephone (202) 366–9826.
SUPPLEMENTARY INFORMATION:
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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
https://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 81⁄2 by
11 inches, suitable for copying and
electronic filing. If you submit
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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
https://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–
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68387
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
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, § 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
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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Federal Register / Vol. 84, No. 241 / Monday, December 16, 2019 / Proposed Rules
M.C.C. 669, at 675). The requirements
have remained essentially unchanged
since the 1930s.
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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 § 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.
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
2 29
U.S.C. 701, et seq.
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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:
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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.
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Federal Register / Vol. 84, No. 241 / Monday, December 16, 2019 / Proposed Rules
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?
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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?
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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]
BILLING CODE 4910–EX–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 600
[Docket No. 191209–0103]
RIN 0648–BI82
Clarification of Magnuson-Stevens
Fishery Conservation and Management
Act Regulation Regarding Monitor
National Marine Sanctuary; Proposed
Rulemaking
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
NMFS is proposing to clarify
its regulation which interprets other
regulations to prohibit all fishing in the
Monitor National Marine Sanctuary
(Sanctuary). This is inconsistent with
the applicable Sanctuary regulation that
prohibits some, but not all, fishing
activity in the Sanctuary. This proposed
rule would revise regulations by
removing the fishing prohibition text
and cross-referencing the Sanctuary
regulations instead.
DATES: Comments must be received by
January 15, 2020.
ADDRESSES: You may submit comments,
identified by NOAA–NMFS–2019–0114,
by the following method:
Electronic Submissions: Submit all
electronic public comments via the
Federal e-Rulemaking portal: https://
www.regulations.gov.
Instructions: All comments received
are a part of the public record and will
generally be posted to https://
www.regulations.gov without change.
All Personal Identifying Information (for
example, name, address, etc.)
voluntarily submitted by the commenter
may be publicly accessible. Do not
submit confidential business
information or otherwise sensitive or
protected information.
NMFS will accept anonymous
comments.
FOR FURTHER INFORMATION CONTACT:
Chris Wright, Fishery Policy Analyst,
301–427–8504, or via email
chris.wright@noaa.gov.
SUMMARY:
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68389
SUPPLEMENTARY INFORMATION:
Background
The Sanctuary was designated as the
nation’s first national marine sanctuary
in 1975. The site protects the wreck of
the famed Civil War ironclad U.S.S.
Monitor. The U.S.S. Monitor is located
approximately 15 miles southeast of
Cape Hatteras, North Carolina. The
Sanctuary currently surrounds the
shipwreck and consists of a vertical
column of water one mile (1.61 km) in
diameter (0.78 square miles (2.02 square
km) in size) extending from the seabed
to the surface, the center of which is at
35°00′23″ north latitude and 75°24′32″
west longitude (15 CFR 922.60). The
U.S.S. Monitor is in water depths of 240
feet (22.3 m).
Fishing in Federal waters off North
Carolina is economically and socially
vital to the state’s residents, visitors,
and coastal communities. Commercial
and recreational fishing provides an
important source of employment,
income, recreation, and food, and is a
significant driver for local tourism.
The United States claims sovereign
rights and exclusive fishery
management authority over fish within
the U.S. Exclusive Economic Zone
(EEZ), an area extending 200 nautical
miles (370.4 km) from the seaward
boundary of coastal states and U.S.
territories (16 U.S.C. 1811(a)). Within
the EEZ, Federal fishery management is
conducted under the authority of the
Magnuson Stevens Fishery Conservation
and Management Act (MSA) (16 U.S.C.
1801 et seq.). NMFS, acting under
authority delegated from the Secretary
of Commerce, is responsible for
managing fisheries pursuant to the
MSA. To assist in fishery management,
the MSA established eight regional
fishery management councils that
develop and submit fishery management
plans to NMFS (16 U.S.C. 1852(a)) for
specific geographic areas. NMFS is
responsible for developing fishery
management plans for Atlantic highly
migratory species (16 U.S.C. 1852(a)(3)).
This action affects regulations
codified in the General Provisions for
Domestic Fisheries (50 CFR part 600,
subpart H). The proposed action would
alleviate the potential for confusion
regarding the fishing restrictions
applicable to the Monitor National
Marine Sanctuary or other sanctuaries.
NMFS is taking this action pursuant to
MSA § 305(d), which gives the Agency
general authority to carry out fishery
management plans adopted under the
MSA.
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]]>Agencies
[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]
-----------------------------------------------------------------------
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: https://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 https://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 https://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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