Opinion: Safety Doesn’t Excuse Prejudice
By James Scapellato
CEO
Scapellato & Co. LLC
This Opinion piece appears in the Aug. 9 print edition of Transport Topics. Click here to subscribe today.
“Alto! ¿Habla usted español?” Imagine this scenario: You and your rig cross the border into Mexico. Along the highway, the police stop you. You haven’t broken any laws, but you’re nervous. Your Spanish is enough to get by, but not all Mexican police officers speak fluent English. The officer checks your papers. His Spanish is fast, with an accent you can’t quite decipher. You do the best you can, communicating the details of your business trip. Satisfied, he lets you go.
Three hours later, you’re stopped again. This time, the officer’s language is too quick, with many words you don’t understand. Once again, you tell him your business purpose, but this time the officer orders you to park, writes a violation for insufficient communication and tells you to stay put until someone bilingual shows up.
Sound crazy? Not really. Similar scenarios occur frequently with interstate truck drivers on many American highways. Police stop drivers and discover they are not native English speakers. Sometimes the driver is allowed to continue; other times the driver is put out of service (OOS) for failure to communicate sufficiently.
The zealotry with which this roadside enforcement is applied varies. During the 2002-2007 period, Volpe National Transportation Systems Center determined that California had completed 2.3 million driver inspections with six English-speaking violations and no OOS violations for language difficulties — this in a state where 20% of the population speaks English less than “very well.”
Compare that with North Carolina, which completed only 268,821 driver inspections but racked up 511 English-speaking violations, with 175 resulting in OOS — in a state where only 4% of the population speaks English less than “very well.”
So, what rule are these drivers breaking and why the arbitrary enforcement?
According to Section 391.11(b)(2) of 49 Code of Federal Regulations, an interstate driver must be able to “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 operative word — “sufficient” — is purposely not clarified in the regulations, giving investigating officers discretion at roadside.
The Federal Motor Carrier Safety Administration and the Commercial Vehicle Safety Alliance both say that if the investigator completes the vehicle/driver inspection, communication has been sufficient.
During its roadside inspections, CVSA enforces the OOS language component sporadically. (State inspectors receiving Motor Carrier Safety Assistance Program grants to enforce interstate trucking regulations during roadside checks under the auspices of CVSA essentially are working as agents for FMCSA.)
FMCSA itself still leaves the regulation’s wording unchanged despite issuing stricter enforcement criteria to field personnel in 2007 — a policy that doesn’t comply with rulemaking or fair-notice procedures.
For almost 75 years, the U.S. Department of Transportation has interpreted the English fluency rule as a motor carrier’s responsibility to evaluate a driver’s English proficiency in the context of duties, type of cargo, route and public contact.
Since 1936, FMCSA and its predecessors have interpreted the rule to require only a minimal level of English fluency to drive a commercial vehicle in interstate commerce. That’s why states may administer the CDL examination in foreign languages without fear of compromising safety. No studies or statistics have shown a connection between greater language fluency and fewer accidents. That’s why it’s unfair for inspectors to enforce subjective standards in the name of safety.
It’s also wrong for states to accept more than $10 billion of MCSAP money from the government when it enforces a higher standard than the federal regulation it purports to enforce — particularly when a stricter standard discriminatorily jeopardizes certain companies from prospering in interstate trucking.
Some states, namely California, Florida and, most recently, North Carolina, have elected not to enforce a language fluency requirement. Internal government reports in 2007 and 2008 offered recommendations to lessen the adverse effects of inconsistent enforcement without success.
Now, however, several discrimination complaints have been filed under the Civil Rights Act of 1964. DOT investigations are under way to determine if states and officers using federal enforcement dollars are violating the act’s Title VI requirements and/or individual rights.
Rooting out the problem is a start, but without coordination and top leadership involvement, it will do little to create a consistent objective standard.
If America is indeed a melting pot of diverse cultures, tolerance should carry the day. Until it’s shown convincingly that a certain level of English fluency reduces accidents on U.S. highways, investigators should cite drivers for “insufficient” communication only if such deficiency honestly prevents completion of the roadside inspection.
Motor carriers should be left to determine fluency during the hiring process, and states should continue to govern language requirements on their commercial driver license exams.
Unnecessary and inconsistent OOS orders must stop, and false OOS “jumping” charges — i.e., accusing a driver of leaving his/her OOS location before the time has expired — should cease immediately until an objective standard is promulgated.
In the interim, the government should provide officers with language-assist technologies to facilitate communication during roadside inspections.
Otherwise, we will continue the inexplicable use of safety as an excuse to wallow in this self-made quagmire of inconsistency, arbitrariness and discrimination.
Scapellato & Co. LLC is a transportation consulting firm located in Mt. Pleasant, S.C.
