Beginning June 25, professional drivers in the U.S. can be placed out of service if they fail to demonstrate proficiency in English at the roadside.
The law, set out in FMCSA regulation 49 C.F.R. 391.11(b)(2), requires commercial drivers operating in the U.S. to be proficient in English. It’s not a new law, by any means. It’s been on the books forever.
However, a 2015 memorandum from then-president Barack Obama softened enforcement of the regulation and no longer allowed CVSA to place drivers out of service for such violations.
That’s about to change. You can read a comprehensive report on the changes and how they may affect you here. In short, U.S. President Donald Trump, by way of executive order, has instructed the FMCSA and CVSA to make failure to demonstrate proficiency in English an out-of-service offense.
CVSA has already moved to update its OOS criteria in response. And FMCSA has been instructed to come up with some way in which to determine English proficiency at roadside. This raises many questions.
What do we know?
Here’s what we know and what we don’t. We do know the OOS criteria for failing to demonstrate proficiency in English will apply to Canadian truck drivers, whether they be French Canadians or new Canadians, or any other Canadian who lacks a grasp of the English language. We don’t get a pass.
We don’t know how English proficiency will be defined or measured. The executive order has instructed FMCSA to issue guidance “outlining revised inspection procedures necessary to ensure compliance with the requirements of 49 C.F.R. 391.11(b)(2).”
We know CVSA will rely on that guidance to carry out roadside enforcement. We do not know how stringent the requirements will be.
Here’s what we think we know: There are going to be some truckers caught off-guard by this stepped-up enforcement. And that could turn out to be a very unfortunate situation for anyone involved.
Unlike a form and manner paperwork violation, which can be fixed right then and there, a driver cannot be expected to become proficient in English while parked at the side of the road. It’s quite possible – likely, even – that the carrier employing that driver would need to send someone else, who is proficient in English, to cover the load. As Mike Millian, head of the Private Motor Truck Council of Canada, says in this issue, “Out of service is out of service.”
Out of service doesn’t mean, ‘Carry on, and brush up on those English skills before you come back.’
Such enforcement will require the fleet to incur considerable expense, not to mention lengthy delays in getting the load to its destination.
Arkansas law
Trump’s executive order comes after Arkansas raised eyebrows with a proposed Act that would require English proficiency when operating a commercial vehicle within the state. And it begs the question: is protectionism slipping into the U.S. cross-border trucking regulatory landscape?
Or, is it just a matter of enforcing rules that are already in place in a stricter, less forgiving manner? Time will tell. The U.S. is dealing with widespread cabotage violations, as per the American Trucking Associations, with Mexican B-1 visa holders overstaying their welcome and hauling domestic loads for U.S.-based fleets, often at heavily discounted rates.
This is bad for everyone, including the Mexican drivers who are often exploited and denied the labor protections that exist for American – and Canadian – drivers.
Nonetheless, Canadian drivers who struggle with English, or are new to the country, must be aware of the coming enforcement changes and be prepared to comply at roadside. If you think you may be unable to meet the yet-to-be-determined guidelines for English proficiency, it may be a good idea to run Canada only for a while. And download the Duolingo app onto your phone or tablet.
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