SPECIAL REPORT: Enforcing English proficiency? What about Florida?

| 9/14/2007

Friday, Sept. 14, 2007 – The English proficiency regulation clearly spelled out in federal regulations is not enforced on the roadside in Florida because of a 1999 settlement agreement between the Florida DOT and a CDL holder of Hispanic origin.

The 1998 case stemmed from enforcement of 391.11(b)2 by the West Palm Beach Police Department. In November 1997, Antonio Cuba was cited for a violation of the statute.

Section 391.11 of the federal regulations outlines the general qualifications of drivers. Specifically, Section (b)2 states the driver “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 …”

Authority to enforce 391.11 was extended to Florida enforcement officials through Section 316.302 of the Florida statutes.

According to the original case filed in February 1998, Cuba obtained his CDL by taking the Florida driving test in Spanish. He was cited after a verbal argument with an officer, and when he appeared in court, he requested an interpreter.

Cuba, along with a number of other plaintiffs who actually had similar citations resolved, brought the lawsuit alleging that:

  • The statute is constitutionally vague;
  • The statute denied the plaintiffs equal protection by virtue of the race, ethnicity, heritage or national origin;
  • The statue deprived the plaintiffs equal benefit of driving privileges;
  • Discrimination; and
  • Malicious prosecution.

After a year of wrangling in the U.S. District Court for the Southern District of Florida, the state and Cuba reached a settlement agreement.

In the agreement, signed in February 1999, the state agreed officers on the roadside would not enforce the federal English proficiency regulation.

“Obviously, this is not new information,” said Joe Rajkovacz, regulatory affairs specialist with OOIDA. “The existence of this prohibition has been acknowledged as recently as July at a meeting I attended.”

That meeting was the Federal Motor Carrier Safety Administration’s Commercial Driver’s License Advisory Committee. That is a committee required by Congress that is to report back to Congress. According to Rajkovacz, the fact that Florida cannot enforce the English proficiency regulation was mentioned at the committee’s July meeting.

Repeated requests to FMCSA headquarters from Land Line for a comment on the settlement and its impact on enforcement of the federal regulation were not returned.

Enforcement of the federal regulation was beefed up nationally in 2005, when CVSA adopted out-of-service criteria addressing communication.

In 2005, the Commercial Vehicle Safety Alliance Out-of-Service Criteria began allowing enforcement officers to place truck drivers out of service if they were unable to “communicate sufficiently” in the country in which they are operating.

The new out-of-service provision, which had been debated for some time, was added to the CVSA criteria and became effective April 1, 2005. It affects commercial drivers operating in the United States, Canada and Mexico.

The new addition to the criteria says:

“In recognition of the three countries’ language differences, it is the responsibility of the driver and the motor carrier to be able to communicate in the country in which the driver/carrier is operating so that safety is not compromised. Driver is unable to communicate sufficiently to understand and respond to official inquiries and directions. Place driver out of service.”

Enforcement of the English proficiency regulation and its out-of-service criteria has taken center stage in recent months leading up to the launch of the cross-border program with Mexico.

In the most recent Department of Transportation Office of Inspector General audit on the cross-border program, the IG addresses the problems with enforcing the English proficiency.

“FMCSA needs to take further action so that state enforcement officials understand how to implement recent demonstration project guidance for areas such as testing English language proficiency among drivers and ensure that training initiatives filter down to the roadside inspectors,” the report states.

The IG’s audit takes such an issue with the problems of English proficiency enforcement, that even though the IG doesn’t make a formal recommendation, it recommended the Secretary of Transportation’s report to Congress address the problems.

According to the audit, the secretary’s report should have included actions to be taken to ensure that state enforcement officials understand how to implement recent demonstration project guidance for areas such as testing English language proficiency among drivers and that training initiatives “filter down to the roadside inspectors.”

In her report to Congress, Secretary of Transportation Mary Peters reported that FMCSA had recently issued enforcement guidance “for example, concerning English language proficiency.”

The IG’s recent audit to Congress on the demonstration project cites the guidance issued by FMCSA in July and reports that the inspector must conduct the interview of the driver in English, gives strategies for communicating with “non-native” speakers of English and instructs the inspector to place a driver out of service for failing the test.

However, several state offices of FMCSA contacted by Land Line, were not aware of any such guidance.

Despite guidance that may or may not be fully distributed, the Florida settlement signed in 1999 has and continues to prohibit any roadside enforcement of the English proficiency regulation.

– By Jami Jones, senior editor