[Federal Register: July 24, 2003 (Volume 68, Number 142)]
[Proposed Rules]
[Page 43889-43891]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jy03-52]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 391
[Docket No. FMCSA 1997-2759]
RIN 2126-AA31 (Formerly RIN 2125-AE19)
English Language Requirement; Qualifications of Drivers;
Withdrawal
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Advance notice of proposed rulemaking (ANPRM); withdrawal.
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SUMMARY: The FMCSA withdraws its advance notice of proposed rulemaking
(ANPRM) requesting comments on potential changes to a provision in the
Federal Motor Carrier Safety Regulations (FMCSRs) involving the English
language. That provision requires that drivers of commercial motor
vehicles (CMVs) operating 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.'' After
analysis and review of the comments, FMCSA has concluded that at this
time there is no quantifiable data on which to propose modifying the
regulation to require a more stringent or definitive standard, or to
require State motor vehicle agencies to administer a specific test for
English proficiency.
DATES: The advance notice of proposed rulemaking published on August
26, 1997, at 62 FR 45200 is withdrawn as of July 24, 2003.
FOR FURTHER INFORMATION CONTACT: Mary Moehring, Driver and Carrier
Operations Division, (202) 366-4001, Federal Motor Carrier Safety
Administration, Department of Transportation, 400 Seventh Street, SW.,
Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Background
On August 26, 1997, the Federal Highway Administration (FHWA),
predecessor agency to the FMCSA, published an ANPRM in the Federal
Register (at 62 FR 45200) requesting comments on potential changes to
49 CFR 391.11(b)(2) of the FMCSRs. This provision requires that drivers
of CMVs operating 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.''
The ANPRM was published in response to a letter from the American
Civil Liberties Union (ACLU) to the U.S. Department of Transportation's
Office of Civil Rights indicating that this English language
requirement may conflict with Title VI of the Civil Rights Act of 1964,
42 U.S.C. 2000d, et seq., as amended, that prohibits discrimination
against applicants and beneficiaries in the administration of federally
funded programs and activities based on race, color and national
origin. In this letter, the ACLU also alleged that the regulation, as
written, is overly broad and subject to arbitrary enforcement, causing
potential interference with the constitutional guarantees of due
process and equal protection.
In the ANPRM, the FHWA stated that Sec. 391.11(b)(2), as
promulgated by the former Interstate Commerce Commission (ICC) in 1936,
was intended to be enforced through the motor carrier employer. As
noted in the ANPRM, the ICC specifically stated that it was the motor
carrier employer's responsibility to evaluate the driver's proficiency
in the English language. In addition, FHWA noted that the regulation
was not intended to be enforced at the roadside. The employer was
presumed to know what communication skills may be necessary for the
type of cargo handled, the route taken, and the public contact
required. The FHWA went on to say that it had never made speaking the
English language a specific pre-requisite for obtaining a Commercial
Driver License (CDL), and in fact proposed, and later authorized,
administration of the CDL test in foreign languages.
The ANPRM asked the following 5 questions:
``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 instruction relating
to the operation, loading or unloading of the vehicle? * * *
2. Do any of the States require drivers who operate commercial
motor vehicles exclusively in intrastate commerce to read and speak
the English language? * * *
3. How do States typically determine whether or not a driver or
motor carrier is in violation of Sec. 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? * *
*
5. How does one measure an individual's level of `English
proficiency' or whether that individual has a `working knowledge of
English'? * * *''
Comments
Fifty-eight comments were received. These came from 9 States, the
U.S. Equal Employment Opportunity Commission (EEOC), the ACLU,
individual citizens, associations representing various segments of the
trucking industry, insurance associations, several trucking companies,
individual drivers and trucking industry management, associations
representing State and Provincial enforcement and motor vehicle
administrators, associations and unions representing drivers, and
safety advocates.
Very few of the comments addressed the questions asked in the
ANPRM. The vast majority of those commenting viewed the ANPRM as a
proposal to lower the current English proficiency standard. The
comments from groups representing the trucking industry, labor groups
representing drivers, insurance companies and associations, and
individual companies and drivers all recommended retaining the current
provision. Nine States submitted comments that either recommended
retaining the current standard or promulgating a more stringent
standard. Of the members of the public who commented, 20 commenters
recommended that the FMCSA either retain the current English language
standard or enact a more stringent standard.
Mr. Victor Morales submitted a copy of a motion filed by counsel on
his behalf in the County Court for Palm Beach County, Florida
requesting the Court to declare Sec. 316.302, Florida Statutes (1997),
relating to the English proficiency requirement for CMV drivers,
unconstitutional on the basis that it was vague, overly broad, and
subject to arbitrary enforcement. Two commenters believed that the
agency should revise the regulation to require a performance-based
standard. Representative Lincoln Diaz-Balart (who represented
Congressional District 21 in
[[Page 43890]]
Florida) opposes FMCSA's current regulation at Sec. 391.11(b)(2) ``due
to a recurring problem in our state as it pertains to enforcement of
this regulation.'' Representative Diaz-Balart states that his
constituents have had their CDLs suspended due to enforcement of Sec.
391.11(b)(2). Examples include, * * * ``traffic citations to CDL
drivers for not commanding the English language to the satisfaction of
the law enforcement officer, thereby giving him or her unfettered
discretion; suspension of the licenses by judges, magistrates and/or
officers of the peace of those drivers for not being able to
communicate in English with the judge when appearing in Court;
violation of due process and therefore the posing of many civil rights
questions.'' Representative Diaz-Balart urged the agency to revise
Sec. 391.11(b)(2) to protect the constitutional and civil rights of
drivers, and to end the arbitrary application of the regulation.
Another member of Congress stated that the current regulation ought to
be retained for safety reasons. The Advocates for Highway and Auto
Safety stated its belief that a ``performance-based'' standard might
result in unacceptably low levels of English proficiency that would
directly endanger the traveling public.
The ACLU submitted comments explaining why, in its view, the
current regulation has a discriminatory impact upon national and ethnic
minorities, and invited discriminatory enforcement. The EEOC stated it
shared the concern of the ACLU that as ``currently written, the FMCSRs'
English fluency requirement may conflict with the Federal civil rights
laws.'' The EEOC suggested drafting a qualification standard in broad
terms that could be applied in a manner appropriate to a specific job
for a specific employer.
Decision
The FMCSA has decided to withdraw the ANPRM. After analysis and
review of the comments, FMCSA has concluded that at this time there is
no quantifiable data on which to propose modifying the regulation
either to require a more stringent or definitive standard or to require
State motor vehicle agencies to administer a specific test for English
proficiency.
The FMCSA appreciates the analysis provided by the EEOC and the
ACLU relating to the requirements of Title VI. However, the information
introduced in response to the ANPRM does not establish that the current
regulation requires an unnecessarily high level of English fluency that
has resulted in a discriminatory impact or effect based upon national
origin, color or ethnicity. Accordingly, FMCSA believes that the
regulation as currently written and properly enforced effectively
balances issues of civil rights and highway safety.
In analyzing Sec. 391.11(b)(2) in today's climate, the FMCSA
believes that the regulation was, and remains, a requirement imposed to
ensure that persons who drive commercial motor vehicles operate safely.
As written, the regulation sets forth the qualifications of drivers of
CMVs to read and speak the English language and allows each motor
carrier employer the flexibility to determine the extent of proficiency
needed to enforce it. It provides carriers with the flexibility to
individually determine whether a driver has communication skills and
English fluency to operate safely on the highway. There is no data
available to suggest that this flexibility has caused discrimination or
to conclude that motor carriers are employing the English language
requirement in anything other than an evenhanded manner, tailored to
the requirements of each particular company's operations. Nor do we
have evidence to suggest that our State and local partners are
subjecting limited English speakers to discrimination based on their
race, color or national origin. The intent of the English-only
regulation is not to discriminate, but to advance public safety and
this is an essential aspect of our program.
Specifically, with regard to concerns about arbitrary or
discriminatory enforcement, the FMCSA has found no evidence to suggest
that enforcement officers routinely issue citations for lack of English
proficiency. To the extent that such enforcement discretion is
exercised, the FMCSA believes that such instances are exceedingly rare
and may be occasioned by a misunderstanding of the provisions of Sec.
391.11(b)(2). From the comments and the data available, the FMCSA
believes that the discretion of enforcement officials to place a driver
out of service when he or she constitutes a safety hazard is, and has
been used judiciously.
Further, FMCSA finds no inconsistency in its authorization to
States to offer CDL tests in languages other than English, while at the
same time requiring motor carrier employers to ensure a level of
English proficiency for drivers on our public highways. The tests,
training and study manuals associated with obtaining a CDL are complex.
Therefore, the administration of the CDL test in languages other than
English is justified. However, in actual operation on the highway, the
CDL driver must be able, based on the needs of the carrier's operation,
to have a sufficient command of English to ensure that safety is not
compromised.
After reviewing the comments, the FMCSA is also persuaded that the
performance-oriented standard, based on required tasks, as suggested in
the ANPRM and advocated by the ACLU and EEOC is, in fact, not
substantively different than the current standard to which persons who
drive commercial motor vehicles must already adhere. The FMCSA is
mindful of the concerns voiced by safety groups and members of the
enforcement community that drivers with limited English proficiency may
pose a potential safety concern both on the roadway, as well as in
situations in which an enforcement officer is conducting a vehicle
inspection, weighing a vehicle, or in other routine law enforcement
actions. At this time, however, as noted, the FMCSA has no quantifiable
data on which to base a proposal that would modify the standards in or
scope of the existing regulation at 49 CFR 391.11(b)(2).
One other matter requires comment here. Under Executive Order
13166, titled ``Improving Access to Services for Persons with Limited
English Proficiency'' (65 FR 50121, September 16, 2000), and guidance
issued on the same day by the Department of Justice (DOJ), titled
``Enforcement of Title VI of the Civil Rights Act of 1964--National
Origin Discrimination Against Persons With Limited English
Proficiency'' (65 FR 50123), the Federal government must ensure that no
person with limited English Proficiency (LEP) shall be discriminated
against on the grounds of race, color or national origin under any
program or activity that receives Federal financial assistance.
Consistent with the executive order, the DOJ guidance, and
additional guidance issued by the Department of Transportation titled,
``DOT Guidance to Recipients on Special Language Services to Limited
English Proficient (LEP) Beneficiaries'' (66 FR 6733), we believe that
the regulation at 49 CFR 391.11(b)(2) is fully consistent with FMCSA's
commitment to provide meaningful access to programs and activities that
persons with limited English proficiency would seek. We are confident
that the rule fulfills its purpose of advancing safety in a manner
wholly in keeping with the terms of the executive order and the
corresponding guidance.
In view of the foregoing considerations, Docket No. FMCSA-1997-2759
is withdrawn.
[[Page 43891]]
Issued on: July 11, 2003.
Annette M. Sandberg,
Acting Adminstrator.
[FR Doc. 03-18597 Filed 7-23-03; 8:45 am]
