Questions and concerns still swirl around what enforcement of the English-proficiency regulations looks like on the roadside.
Well ahead of noncompliance with the regulation becoming an out-of-service violation once again, the Federal Motor Carrier Safety Administration attempted to lay the groundwork. Issuing an enforcement policy memo on May 20, the agency laid out what inspectors should do to determine English proficiency.
The English-proficiency regulation
For starters, here is the actual regulation, with emphasis added:
391.11 General qualifications of drivers.
a) A person shall not drive a commercial motor vehicle unless he/she is qualified to drive a commercial motor vehicle. Except as provided in 391.63, a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless that person is qualified to drive a commercial motor vehicle.
b) Except as provided in subpart G of this part, a person is qualified to drive a 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 …
The key to the regulation is that individuals must be able to “sufficiently” converse in English. As OOIDA President Todd Spencer put it, that doesn’t mean they have to recite an encyclopedia. It’s just a conversation.
Understanding highway traffic signs can get tricky, even with the national standard for all highway signs. The use of dynamic signs for emergencies or highway alerts complicates that issue.
English proficiency two-part test
In the enforcement memo, it’s noted that the secretary of transportation has determined that a person must be able to speak English sufficiently to:
- Converse with the general public
- Understand highway traffic signs and signals
- Respond to official inquiries
- Make entries on reports and records
So, how does a roadside inspector determine compliance?
According to the enforcement memo, if an inspector’s initial contact with a driver suggests the driver may not meet the regulatory requirements, an assessment should be conducted. That assessment is a two-part test consisting of a driver interview and a highway traffic sign recognition assessment.
During the interview portion of the test, the inspector is supposed to let the driver know that he or she is to respond in English. The driver can’t use interpreters, cue cards, smartphone apps or anything like that during the interview. The memo states the inspector should speak slowly but naturally, be mindful not to rush the questions and paraphrase in English as appropriate.
“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 violation of 391.11(b)(2),” the memo states.
If the driver fails the interview portion of the test, the memo says there’s no need to proceed to the road sign, signal portion of the test.
However, if the driver passes the interview portion, the test moves on to the traffic sign recognition portion of the inspection.
Drivers can expect to be tested not only on uniform traffic signs but also on the changeable, or dynamic, electronic signs they could see while out on the road. The specifics of the sign recognition test are redacted from the public version of the enforcement memo.
However, the Georgia Department of Public Safety issued a memo on May 22 saying drivers must identify three out of four traffic signs during the inspection. It is unclear if this is just Georgia’s standard or the federal inspection standard, but it is a glimpse into what is expected.
Pass the test, now what?
Once a driver successfully passes the two-part English-proficiency test, the FMCSA enforcement memo says that the inspector may conduct the rest of the inspection “using communication methods and techniques best suited to facilitate the safe and effective completion of the inspection.”
Fail the test, it’s OOS for you
If the inspector cites the driver for a violation of 391.11(b)(2), the inspector must document all evidence to support the identified violation, including the driver’s responses or lack thereof. Then they are to place the driver out of service.
Interestingly, the memo goes on to say, “When warranted, initiating an action to disqualify the driver from operating commercial motor vehicles in interstate commerce” is also on the table. However, the memo does not go on to explain what situation would warrant a driver being banned from driving.
Out-of-service stats
It’s too soon to tell how many drivers have been put out of service since the English-proficiency enforcement deadline of June 25. North American inspection data lags behind a full two to three weeks, month to month.
As expected, June showed a spike in both inspections and out-of-service orders in the five days the order was in effect, according to the OOIDA Foundation. July numbers are expected to be made public in mid-to-late August. That should provide some context on what the roadside enforcement picture looks like and the number of drivers on the road today who aren’t compliant with the English-proficiency regulations. LL
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