Driver Qualifications; Regulatory Guidance Concerning the Applicability of Language Requirement to Drivers Who Do Not Meet the Hearing Standard

T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
October 1, 2014

[Federal Register Volume 79, Number 190 (Wednesday, October 1, 2014)]
[Rules and Regulations]
[Pages 59139-59140]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-23435]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 391


Driver Qualifications; Regulatory Guidance Concerning the 
Applicability of Language Requirement to Drivers Who Do Not Meet the 
Hearing Standard

AGENCY: Federal Motor Carrier Safety Administration, DOT.

ACTION: Notice of regulatory guidance.

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SUMMARY: The FMCSA provides regulatory guidance concerning the 
applicability of the driver qualification requirement that interstate 
drivers must be able to read and speak the English language 
sufficiently to converse with the general public and respond to 
official inquiries to drivers who do not meet the Agency's hearing 
standard. The guidance explains that the English-language rule should 
not be construed to prohibit operation of a commercial motor vehicle 
(CMV) by hearing impaired drivers who can read and write in the English 
language but do not speak, for whatever reason. While the Federal Motor 
Carrier Safety Regulations (FMCSRs) prohibit individuals who do not 
meet the hearing standard from operating CMVs in interstate commerce, 
FMCSA has granted exemptions to a number of hearing-impaired 
individuals. Some hearing impaired drivers have advised the National 
Association of the Deaf that they have been told by State licensing 
agency officials that they do not meet the English language requirement 
essentially because they do not speak. This guidance is intended to 
address the perceived conflict between the exemptions and the manner in 
which FMCSA regulations are being applied to hearing impaired drivers.

DATES: This guidance is effective October 1, 2014.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas L. Yager, Chief, Driver and 
Carrier Operations Division, Office of Bus and Truck Standards and 
Operations; 1200 New Jersey Ave. SE., Washington, DC 20590, Telephone 
202-366-4325, Email: MCPSD@dot.gov.

SUPPLEMENTARY INFORMATION: 

Legal Basis

    The Secretary of Transportation has statutory authority to set 
minimum standards for commercial motor vehicle safety. These minimum 
standards must ensure that: (1) CMVs are maintained, equipped, loaded, 
and operated safely; (2) the responsibilities imposed on operators of 
CMVs do not impair their ability to operate the vehicles safely; (3) 
the physical condition of operators of CMVs is adequate to enable them 
to operate the vehicles safely; (4) the operation of CMVs does not have 
a deleterious effect on the physical condition of the operators; and 
(5) an operator of a CMV is not coerced by a motor carrier, shipper, 
receiver, or transportation intermediary to operate a commercial motor 
vehicle in violation of a regulation. (49 U.S.C. 31136(a)(1)-(5), as 
amended). The Secretary also has broad power in carrying out motor 
carrier safety statutes and regulations to ``prescribe recordkeeping 
and reporting requirements'' and to ``perform other acts the Secretary 
considers appropriate.'' (49 U.S.C. 31133(a)(8) and (10)).
    The Administrator of FMCSA has been delegated authority under 49 
CFR 1.87(f) to carry out the functions vested in the Secretary of 
Transportation by 49 U.S.C. chapter 311, subchapters I and III, 
relating to commercial motor vehicle programs and safety regulation.

Background

History of the English Language Requirement

    On December 23, 1936, as part of its newly-promulgated ``Motor 
Carrier Safety Regulations,'' the Interstate Commerce Commission (ICC) 
established an English language requirement for drivers of motor 
vehicles operated in interstate or foreign commerce by common and 
contract carriers. The original wording, as contained in paragraph 3 of 
Part I [Qualification of Drivers] required that:

    On and after July 1, 1937, no motor carrier shall drive, or 
require or permit any person to drive, any motor vehicle operated in 
interstate or foreign commerce, unless the person so driving 
possesses the following minimum qualifications: * * * (k) Ability to 
read and speak the English language, unless the person was engaged 
in so driving on July 1, 1937 or within one year prior thereto, but 
in any case ability to understand traffic and warning signs. (1 
M.C.C. 1, at 18-19)

The preamble to the I.C.C decision stated that:

    It is evident that ability to read and speak English is 
important to any adequate compliance with safety regulations. 
Cognizance has been taken, however, of the existence in certain 
areas of numbers of drivers in present service who are unable to 
read or speak English, but even in these cases the ability at least 
to understand traffic and warning signs is required. (1 M.C.C. 1, at 
7-8)

    On May 27, 1939, the ICC made certain changes and additions to the 
Motor Carrier Safety Regulations,

[[Page 59140]]

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 M.C.C. 669, at 675)

    Section 391.11(b)(2) of the Federal Motor Carrier Safety 
Regulations (FMCSRs) currently states that a person is qualified to 
drive a commercial motor vehicle if he/she ``can 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.''

Relationship Between the English Language Rule and the Hearing Standard

    Currently, FMCSA's physical qualifications standards under 49 CFR 
391.41(b)(11) require that drivers be capable of hearing 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.

Section 391.41(b)(11) Exemptions

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption 
from the safety regulations for a 2-year period if it finds ``such 
exemption would likely achieve a level of safety that is equivalent to, 
or greater than, the level that would be achieved absent such 
exemption.'' The statute also allows the Agency to renew exemptions at 
the end of the 2-year period.
    On February 1, 2013, FMCSA announced its decision to grant requests 
from 40 individuals for exemptions from the Agency's physical 
qualifications standard concerning hearing for interstate drivers (78 
FR 7479). After notice and opportunity for public comment, the Agency 
concluded that granting exemptions for these CMV drivers will provide a 
level of safety that is equivalent to or greater than the level of 
safety maintained without the exemptions. As part of the process for 
reaching this decision, the Agency considered the medical status of 
each applicant and evaluated their crash and violation data; some of 
the applicants were driving CMVs in intrastate commerce. The Commercial 
Driver's License Information System and Motor Carrier Management 
Information System were searched for crash and violation data on the 
applicants and each of them demonstrated a safe driving history. The 
FMCSA granted exemptions that allow these 40 individuals to operate 
CMVs in interstate commerce for a 2-year period. Subsequently, FMCSA 
granted an additional 20 exemptions and requested public comment on 
more than 70 applications for exemptions from the hearing standard. The 
exemptions preempt State laws and regulations and may be renewed by 
FMCSA.
    Following the decision to grant exemptions, because some hearing-
impaired drivers granted exemptions do not speak English, it has been 
asserted that they may not meet the requirements of Sec.  391.11(b)(2) 
and may not be qualified to operate CMVs in interstate commerce, even 
though they can read and write in English. This issue was first raised 
by the National Association of the Deaf in discussions with the Agency 
prior to the granting of the exemptions and continues to be an issue in 
need of clarification.

FMCSA's Decision To Issue Regulatory Guidance

    In consideration of the above, FMCSA has determined that regulatory 
guidance should be issued to make clear that, for drivers exempted from 
the hearing standard in 49 CFR 391.41(b)(11) who cannot speak English, 
the ability to read and write in English is sufficient to satisfy the 
English-language requirement of 49 CFR 391.11(b)(2). The FMCSA adds 
Question 7 to its guidance for 49 CFR 391.11, to read as follows:

Qualification and Disqualification of Drivers; Regulatory Guidance for 
49 CFR 391.11(b)(2)

    Question 7: Would a driver who fails to meet the hearing standard 
under 49 CFR 391.41(b)(11) but has obtained an exemption from that 
requirement, be considered unqualified under the English language 
proficiency requirement in 49 CFR 391.11(b)(2) if the driver cannot 
communicate orally in English?
    Guidance: No, if the hearing impaired driver with an exemption is 
capable of reading and writing in the English language. In that 
circumstance, the hearing impaired driver satisfies the English 
language requirement. The absence of an ability to speak in English is 
not an indication that the individual cannot read and write in English 
sufficiently to communicate 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.

    Issued on: September 25, 2014.
T. F. Scott Darling, III,
Acting Administrator.
[FR Doc. 2014-23435 Filed 9-30-14; 8:45 am]
BILLING CODE 4910-EX-P