The National Association of the Deaf (NAD) has asked the Federal Motor Carrier Safety Administration (FMCSA) to rescind a hearing requirement for interstate commercial drivers.
A request for public comments on the rulemaking petition is scheduled to publish in the Dec. 16 Federal Register. According to the draft of the proposal provided by FMCSA, NAD asks “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,” according to the text of the Federal Register notice.
NAD is specifically looking for FMCSA to rescind U.S. Department of Transportation (DOT) rule 49 CFR § 391.41(b)(11), which states that any prospective CDL holder “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.”
In addition, under 49 CFR § 391.41(e)(11), DOT rules state that a person is not considered to have a hearing impairment if he or she can “perceive 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.”
Comments will be accepted for 60 days following formal publication of the Federal Register notice.
The current hearing standard was adopted in 1970 and revised in 1971 to allow for the wearing of a hearing aid.
Howard Rosenblum, CEO and director of legal services for the National Association of the Deaf, told FreightWaves there are 48 million deaf and hard of hearing people in the U.S., and estimates are that as many as 60% are either unemployed or underemployed.
“The DOT has continued rules that were adopted by its predecessors requiring the ability to speak and the ability to hear in its driving regulations back in the 1930s, as stated in their notice today,” Rosenblum said.
He added that “These requirements from the 1930’s persist today despite the fact that deaf and hard of hearing people have proven track records of driving as safely if not more safely than drivers who can hear perfectly. Many things are very different today than in the 1930s, including the fact that there are more than 100 deaf and hard of hearing medical professionals and more than 400 deaf and hard of hearing attorneys.”
Since May 2013, FMCSA has granted nearly 600 waivers for drivers who did not meet the current regulation’s requirement. The speech requirement has been on the books since 1936 when it was adopted by the Interstate Commerce Commission, the forerunner to the DOT.
“This is indisputable evidence that deaf and hard of hearing people can drive not just cars but also trucks. The record thus far has shown their safe driving record,” Rosenblum said.
Since 2011, interpreters have been prohibited from helping applicants take the CDL knowledge and skills test. However, the tests are offered in written or verbal form or in an automated format, including in a foreign language.
In the Federal Register notice, NAD says that despite the exemptions, it would like to see the statutory requirement removed from the regulations.
“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,” it says.
In 2017, FMCSA issued guidance that allowed leeway when it came to understanding what the terms “speak” and “verbal” meant in regard to the regulation. “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,” FMCSA said.
Following publication of that guidance, though, several carriers and CDL training providers expressed concerns with FMCSA when it came to behind-the-wheel training of a deaf or hearing-impaired individual. The inability to effectively communicate was cited as a concern, as was over-the-road safety, particularly as it relates to a driver’s eyes straying from the road as they try to communicate with an instructor and the ability to hear audible alerts, warnings, emergency vehicles and sounds in and around busy loading docks and terminals.
Rosenblum disputes this argument and pointed to an FMCSA study from 2008 that stated there was no evidence that deaf and hard of hearing individuals were at any greater danger than any other motor vehicle operator.
“Consistent with the findings of the [previous] retrospective cohort study, neither study found evidence to support the contention that individuals with hearing impairment are at an increased risk for a crash,” FMCSA said.
That same report also downplayed the significance of the “forced whisper test,” noting that “while the test can pick up most individuals with hearing loss, it will also label many individuals with normal hearing as being hearing impaired. Thus, while the forced-whisper test may be considered as a good screening test for hearing impairment, it should not be considered as being diagnostic for the disorder.”
Yet, the test remains in the regulations.
“The ability to hear is assumed to be a factor in safe driving but is not based in any actual science or research. All research done so far has demonstrated no difference in driving ability whether someone has perfect hearing or is deaf,” Rosenblum said. “Today, hearing drivers have music and phones to listen to while they are driving, and there is no prohibition on such use of auditory tools when driving. Consequently, any concerns about deaf people driving trucks is not rooted in any actual evidence but in stereotypical fears.”