Last month, the US Department of Transportation (DOT) updated its guidance to federal and state enforcement officials for determining commercial motor vehicle (CMV) driver compliance with proficiency of the English language. The updated guidance is in response to an Executive Order issued by President Trump back in April. The new guidance aims to reestablish enforcement of the requirement for drivers to be proficient in the English language as per Title 49 of the Code of Federal Regulations section 391.11(b)(2). While the requirement is not new, its enforcement has been nearly non-existent following guidance on the issue from former President Obama.
The new guidance is two-fold, stating, “This policy advises FMCSA personnel to initiate all roadside inspections in English. If the inspector’s initial contact with the driver indicates that the driver may not understand the inspector’s initial instructions, the inspector should conduct an ELP assessment in order to evaluate the driver’s compliance with 49 CFR § 391.11(b)(2). This assessment should consist of a (1) driver interview; and (2) highway traffic sign recognition assessment.” Specifically, each step directs the following:
Step 1 – The inspector should evaluate the driver’s ability to respond sufficiently to official inquiries and directions in English as required by 49 CFR § 391.11(b)(2). Because the driver interview is a means of establishing the driver’s ability to respond to official inquiries by speaking English sufficiently, the inspector should inform the driver that he or she should respond to the inspector in English.
Tools to facilitate communication, such as interpreters, I-Speak cards, cue cards, smart phone applications, and On-Call Telephone Interpretation Service, should not be used during the driver interview as those tools may mask a driver’s inability to communicate in English. If the inspector determines the driver is unable to respond to official inquiries in English sufficiently, it is the policy of FMCSA that the inspector cite the driver for a violation of 49 CFR § 391.11(b)(2). There is no need to progress to Step 2 if the inspector determines that the driver is unable to respond sufficiently to official inquiries as outlined in Step 1 of the ELP Assessment.
Step 2 – The inspector should evaluate the driver’s ability to understand sufficiently U.S. highway traffic signs by conducting a Highway Traffic Sign Assessment to include highway traffic signs that conform to the Federal Highway Administration’s Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) and electronic-display changeable (a.k.a. “dynamic”) message signs the driver may encounter while operating a commercial motor vehicle.
The guidance also states, “If the inspector cites the driver for a violation of 49 CFR § 391.11(b)(2), the inspector must document all evidence to support the identified violation including the driver’s responses or lack thereof. It is the policy of FMCSA that the inspector also take follow-on action including: 1) placing the driver immediately out-of-service once a violation of 49 CFR § 391.11(b)(2) is incorporated into the North American Standard Out-of-Service Criteria; and 2) when warranted, initiating an action to disqualify the driver from operating commercial motor vehicles in interstate commerce. Should the driver be placed out-of-service, the inspector should advise the driver that it is unlawful to operate a commercial motor vehicle while out-of-service and that the driver should not operate commercial motor vehicles in interstate commerce until the condition is remedied.”
The new guidance is now in effect; however, any out-of-service requirements likely won’t be applied until June 25.
Click here to review DOT’s announcement and here to review DOT’s new guidance. For more information, contact Kevin Walgenbach.
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