English Proficiency Directive Still Open to Subjectivity
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The trucking industry is voicing widespread support for the Trump administration’s directive to place truck drivers out of service if they fail to demonstrate proficiency of the English language during roadside inspections. The move is supported by evidence that suggests drivers who cannot read or understand English-language road signs present a potential threat to safety on U.S. highways.
Questions remain, however, about whether the rule — effective June 25 — will be easy to enforce.
Per Commercial Vehicle Safety Alliance Deputy Executive Director Adrienne Gildea, if an inspector believes that a driver does not understand his instructions, that inspector can conduct an interview to test the driver’s command of English and his or her understanding of road signs. Gildea expressed confidence that the 13,000 CVSA-certified inspectors will be ready for prime time in enforcing the new rule.
The Federal Motor Carrier Safety Administration has issued advanced instructions for inspectors but redacted the information from public view to prevent drivers from having an advance look at the testing details.
Not a New Rule
The agency’s language-proficiency standard is not new; for decades it existed as an out-of-service violation. However, a guidance document was issued in June 2016 that removed out-of-service enforcement. “If the driver cannot read, write or speak English but can communicate sufficiently with the investigator, he or she should not be cited for a violation,” the guidance said. The revised directive said that if a driver can communicate sufficiently to complete the inspection or investigation, he or she should not be cited.
Attorneys and regulatory experts said there is room for interpretation with the new rule, opening the potential for challenges with enforcement.
“The regulation makes sense,” said Prasad Sharma, a partner in the trucking law firm . “But it’s fairly broadly worded. I think the concern is that the regulation is subjective. It’s not an objective standard. That leads to potential concern for uneven enforcement. Obviously, there’s going to have to be some training. The guidance was helpful, but there still are a lot of questions.”
Brandon Wiseman, a transportation attorney and president of Trucksafe Consulting said: “The problem is subjectivity. What one officer thinks is proficient, another officer may not agree. That’s the wild card on how this is going to play out.”
Trucksafe is run by transportation attorneys who have spent years assisting motor carriers with DOT regulatory compliance.
Two-Part Test
“To its credit, the FMCSA has tried to temper that concern by creating the two-part test: The officer conducts a driver interview and the second part is the sign recognition,” he added.
Wiseman said another issue is the lack of an apparent remedy for a driver taken off the road.
“You get put out of service. How do you get back into service? If my tire is flat, the way you get back in service is to fix the tire. But how do you get back into service for a lack of English proficiency? Presumably, you have to put a driver through some training.”
A Trucksafe survey of violations by state in the first four months of this year uncovered zero violations recorded for drivers lacking English proficiency in the border states of Texas and New Mexico, with only 13 in California and seven in Arizona. This indicates that states with potentially more bilingual inspectors may not be emphasizing issuing violations. By contrast, there were 339 violations issued in Tennessee and 274 in Pennsylvania.
“I think the regulation has the potential for subjectivity,” said Doug Marcello, a trucking attorney at Saxton & Stump, a law firm with office locations throughout Pennsylvania. “Whenever you are making a determination of the performance of something such as the ability to speak or understand the language, that can differ from person to person — what they believe the level is.”
Brenna Lyles, senior director of safety policy for , said, “It’s a difficult thing for inspectors to apply evenly across states. When this was an out-of-service violation prior to 2016, that was the main reason it ended up being taken out as an out-of-service violation — it’s just difficult to enforce.”
ATA supports the revised standard.
In some states, drivers can still take their written CDL test in their native language, but they are not permitted to use their native language for the CDL driving test, Lyles said.
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“FMCSA has been clear that they’re not expecting that drivers are fluent in English,” Lyles said. “They’re looking for a level of proficiency that allows them to ensure safety and be able to communicate with officers as well as the motoring public in situations where it’s necessary.”
Lyles noted that while the updated directive has better standardization than the Obama-era guidance that was paused, there still is room for interpretation.
“There’s just no way for every single officer to use the same criteria or judgment,” she said.
As for follow-up measures, Lyles said that if a driver fails the test and is placed out of service, he or she can study and better prepare for a subsequent test. But a second failure could create hefty fines or result in a loss of a driver’s CDL, depending on a driver’s state of domicile.
Drivers who fail the proficiency test still can drive in border states’ free commercial zones. Failure of the test in those areas can result in citations, but not in an out-of-service penalty.
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