Alliance also petitions FMCSA for Standard Testing Procedure on Language Proficiency
The Commercial Vehicle Safety Alliance (CVSA) member jurisdictions have voted to remove from the out-of-service (OOS) criteria violations of 49 C.F.R. § 391.11(b)(2) that generally states that a person shall not drive a commercial motor vehicle unless that person “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.”
The current OOS criteria guideline states, “(7) in recognition of the three countries language differences (U.S., Canada, and Mexico), it is the responsibility of the driver and the motor carrier to be able to communicate in the country in which the driver/carrier is operating so that safety is not compromised. [If] Driver is unable to communicate sufficiently to understand and respond to official inquiries and directions (391.11(b) (2)) Declare driver out-of-service.
Effective April 1, 2015, CVSA member jurisdictions will no longer place a driver OOS for a violation of this U.S. regulation. However, the specific regulation will still exist and officers can note the violation on inspection reports and/or issue citations. California has never adopted into the CVC an equivalent violation for enforcement within the state.
When reviewing motor carrier data from the cross-border pilot project, violations of §391.11(b) (2) were the most frequently cited in negatively affecting motor carrier SMS scores within the Driver Fitness BASIC. In California when violations were noted it was primarily done by U.S. inspectors at the border – not CHP officers. Deficient “scores” within any BASIC can be used by law enforcement as a pretext to perform a compliance review of a motor carriers safety practices. Data is also used by insurance companies to evaluate risk and can lead to dramatic increases in the cost of insurance or even cancellation of coverage.
CVSA Petition to FMCSA
On October 10, 2014 CVSA submitted a Petition “to amend 49 CFR Part 391 to facilitate adequate language proficiency for commercial drivers.” CVSA is not calling for a complete removal of the regulation but instead asking FMCSA to aid in developing more objective criteria to be used at roadside by enforcement officers. CVSA’s petition in part states:
Based on CVSA’s recent experience, three things are clear: (1) although the language proficiency regulation is frequently cited, it is rarely used as a reason to declare a driver out of service; (2) in general, language proficiency does not seem to play a major role in crashes; and (3) the current regulation does not provide adequate guidance for roadside personnel on how to apply and enforce the regulation, nor for industry to comply. Accordingly, CVSA petitions FMCSA to amend the language of § 391.11(b)(2) to make it clear and objective and to revise the Commercial Drivers Licensing (CDL) requirements to be consistent with § 391.11(b)(2).
Moreover, CVSA would like to work with FMCSA to develop a standard test procedure for law enforcement to administer in determining whether the commercial driver meets a minimum standard for communication, as well as to provide assistance in the development of educational materials for industry and enforcement. Finally, CVSA informs FMCSA that it is currently in the process of removing language proficiency from the North American Standard Out-of-Service Criteria (OOSC), because it no longer believes language proficiency issues present an imminent safety hazard such that a driver should be declared out of service.
This particular regulation in the FMCSR’s has proved to be very contentious both within the trucking industry and states. The requirement to “speak English” has been used extensively by opponents of expanded cross-border trucking from Mexico.
It has also lead to lawsuits where some states have been enjoined by the courts or through legal settlements from enforcing the requirement at roadside or in the licensing of commercial drivers. The most populace state in the nation – California – will not enforce this requirement.
Recent action by FMCSA to issue waivers for deaf drivers to operate a commercial motor vehicle exempting them from this regulation is also acting to undermine the continued validity of maintaining the requirement. Many of the hearing impaired drivers issued waivers do not speak English. CVSA’s petition is very clear in stating there is a lack of evidence supporting a link between “language issues and highway safety.”