[Federal Register Volume 62, Number 165 (Tuesday, August 26, 1997)]
[Proposed Rules]
[Pages 45200-45201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22605]
[[Page 45200]]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 391
[Docket No. FHWA-97-2759]
RIN 2125-AE19
English Language Requirement; Qualifications of Drivers
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Advance Notice of Proposed Rulemaking (ANPRM); request for
comments.
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SUMMARY: The FHWA is considering a revision to the requirement in 49
CFR 391.11(b)(2) of the Federal Motor Carrier Safety Regulations
(FMCSRs) that drivers of commercial motor vehicles operated in
interstate commerce be able to read and speak the English language
sufficiently to converse with the general public, understand highway
traffic signs and signals, respond to official inquiries, and make
entries on reports and records. In the interests of safety and civil
rights, the FHWA is attempting to reconcile its obligation to assure
adequate communication on the part of commercial motor vehicle drivers
with concerns of possible discrimination raised by the present rule.
DATES: Comments must be received on or before October 27, 1997.
ADDRESSES: Signed, written comments should refer to the docket number
that appears at the top of this document and must be submitted to the
Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW.,
Washington, DC 20590-0001. All comments received will be available for
examination at the above address between 10 a.m. and 5 p.m., e.t.,
Monday through Friday, except Federal holidays. Those desiring
notification of receipt of comments must include a self-addressed,
stamped envelope or postcard.
FOR FURTHER INFORMATION CONTACT: Mr. Richard H. Singer, Office of Motor
Carrier Research and Standards, HCS-10, (202) 366-4009; or Mr. Charles
E. Medalen, Office of the Chief Counsel, HCC-20, (202) 366-1354,
Federal Highway Administration, 400 Seventh Street, SW., Washington, DC
20590. [TDD number for the hearing impaired: 1-800-699-7828] Office
hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday,
except federal holidays.
SUPPLEMENTARY INFORMATION:
Background
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 explained that an English language requirement was * * *
* * * amply supported by the record. 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, 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)
Present Requirement
Section 391.11(b) of the FMCSRs currently states,
Except as provided in Subpart G [Limited Exemptions] of this
part, a person is qualified to drive a commercial motor vehicle if
he/she--
* * * (2) 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.
It has been brought to the attention of the Department of
Transportation that the wording of this requirement might occasion a
conflict with Title VI of the Civil Rights Act of 1964, which prohibits
discrimination in the administration of federally funded programs based
on race and national origin.
The American Civil Liberties Union (ACLU) raised this issue in a
letter to the Department's Office of Civil Rights. The ACLU also
believes that, as written, the English-speaking requirement is overly
broad and subject to arbitrary enforcement, causing potential
interference with constitutional guarantees of due process and equal
protection. The ACLU requested an opportunity to submit a comprehensive
analysis of this issue, and this notice will, among other things,
afford them that opportunity.
Enforcement Practices
On January 20, 1995, the Utah Department of Transportation
specifically requested guidance from FHWA relating to enforcement of
the English language requirement. In its letter, Utah posed three
questions: (1) Should a State establish sanctions for drivers who do
not meet the language requirement? (2) Should the driver be placed out-
of-service and the driver's company notified? and (3) Would a violation
of 391.11(b)(2) invalidate the operator's commercial driver's license
(CDL), since CDL applicants who expect to drive in interstate commerce
must certify that they meet the requirements of part 391? The FHWA
recognizes that section 391.11 was originally intended to be enforced
through the motor carrier employer, i.e., it was the employer's
responsibility to evaluate the driver's proficiency with the English
language in the context of his or her duties and responsibilities. The
ICC further recognized that the provisions as to qualifications of
drivers embodied requirements which were ``manifestly desirable''--but
that final responsibility must rest with the motor carrier to `` * * *
satisfy himself that his drivers meet these requirements.'' (1 M.C.C.
1, at 6, December 23, 1936) When promulgated, the rule was not intended
to be enforced at roadside. The employer was presumed to know what
communication skills may be necessary for the type of cargo handled,
the route to be taken, and the contact with the public that may be
necessary. The FHWA never made speaking English a specific pre-
requisite for the CDL, and, in fact, proposed and later authorized
administration of the CDL test in foreign languages. States, however,
do administer some form of test to all license applicants which is
intended to demonstrate their ability to read or recognize warning
signs.
NAFTA Resolution
Working Group One of the Land Transportation Standards Subcommittee
established by the North American Free Trade Agreement (NAFTA) is
striving to
[[Page 45201]]
establish ``compatibility and equivalence'' between U.S., Mexican, and
Canadian standards for commercial motor vehicles and drivers, as well
as for motor carrier compliance. In June 1995 it adopted the following
resolution: ``That in recognition of the three countries' language
differences 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.''
Request for Comments
The FHWA seeks to modify this regulation to require that drivers
simply possess the basic functional communications/comprehension
ability necessary to ensure safety. To replace the general requirement
that drivers exhibit ``English proficiency'' or a ``working knowledge
of English,'' the FHWA is considering establishing a set of
performance-oriented standards based on tasks a driver is expected to
perform which require knowledge of the English language. The FHWA
specifically requests comments addressing the following questions.
However, commenters are also encouraged to include discussion of any
other issues they may consider relevant to this rulemaking.
1. Are there known instances in which a safety problem occurred
which could be attributed, in whole or in part, to the driver not being
able to read and speak English sufficiently to understand traffic
signs, or written or verbal instructions relating to the operation,
loading or unloading of the vehicle? Commenters are encouraged to give
a detailed description of such an occurrence, the likelihood of
repetition, and how the inability to read or speak the English language
played a role.
2. Do any of the States require drivers who operate commercial
motor vehicles exclusively in intrastate commerce to read and speak the
English language? If so, was the requirement established only to
achieve compatibility with the FMCSRs? If there were other reasons for
establishing such a requirement, please elaborate.
3. How do States typically determine whether or not a driver or
motor carrier is in violation of Section 391.11(b)(2) or an equivalent
State provision? Are there particular English phrases or terms that are
used to test the driver's comprehension of the English language? Are
there specific highway signs or messages that are shown to the driver?
4. Are there any cases in which State officials, exercising their
authority under State law, have placed drivers out of service for being
unable to read or speak the English language, after making a
determination that the driver's inability to comprehend the language
created a safety risk that was too great to be ignored? If so, how did
the State official determine that the safety risk was at a level that
would warrant placing the driver out of service? Was the enforcement
action subsequently challenged in court? What was the outcome?
5. How does one measure an individual's level of ``English
proficiency'' or whether that individual has a ``working knowledge of
English''? Alternatively, what language tasks should a driver be able
to perform, and what ``performance-oriented'' language standards should
we impose to guarantee this performance?
Rulemaking Analysis and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket room at the above address. Comments
received after the comment closing date will be filed in the docket and
will be considered to the extent practicable. In addition to late
comments, the FHWA will also continue to file in the docket relevant
information that becomes available after the comment closing date, and
interested persons should continue to examine the docket for new
material.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 or
significant within the meaning of Department of Transportation
regulatory policies and procedures. Due to the preliminary nature of
this document and lack of necessary information on costs, the FHWA is
unable to evaluate the economic impact of the potential regulatory
changes being considered in this rulemaking. Based on the information
received in response to this notice, the FHWA intends to carefully
consider the costs and benefits associated with various alternative
requirements. Comments, information, and data are solicited on the
economic impact of the potential changes.
Regulatory Flexibility Act
Due to the preliminary nature of this document and lack of
necessary information on costs, the FHWA is unable to evaluate the
effects of the potential regulatory changes on small entities. Based on
the information received in response to this notice, the FHWA intends,
in compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), to carefully consider the economic impacts of these potential
changes on small entities. The FHWA solicits comments, information, and
data on these impacts.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this action does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this program. Catalog of Federal Domestic Assistance
Program Number 20.217, Motor Carrier Safety.
Paperwork Reduction Act
This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1980, 44
U.S.C. 3501 et seq.
National Environmental Policy Act
The agency has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has
determined that this action would not have any effect on the quality of
the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
Authority: 49 U.S.C. 504, 31133, 31136, and 31502; and 49 CFR
1.48.
Issued on: August 18, 1997.
Gloria J. Jeff,
Acting Federal Highway Administrator.
[FR Doc. 97-22605 Filed 8-25-97; 8:45 am]
BILLING CODE 4910-22-P
