[Federal Register Volume 68, Number 142 (Thursday, July 24, 2003)]
[Proposed Rules]
[Pages 43889-43891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18597]


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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26, 1997, at 62 FR 45200 is withdrawn as of July 24, 2003.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.


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    Issued on: July 11, 2003.
Annette M. Sandberg,
Acting Adminstrator.
[FR Doc. 03-18597 Filed 7-23-03; 8:45 am]
BILLING CODE 4910-EX-P