45200 Federal Register / Vol. 62, No. 165 / Tuesday, August 26, 1997 / Proposed Rules

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.

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
Federal Register / Vol. 62, No. 165 / Tuesday, August 26, 1997 / Proposed Rules 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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