[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]
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