[Federal Register Volume 79, Number 190 (Wednesday, October 1, 2014)]
[Rules and Regulations]
[Pages 59139-59140]
From the Federal Register Online via the Government Publishing 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: [email protected].
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