Waynes World - July 2005

PENALTIES INCREASE FOR REPEAT OFFENDERS,
FINDING PAST ARTICLES, AND...

LEARN THE LANGUAGE OR RISK BEING PLACED OUT-OF-SERVICE
By Wayne Schooling

A: Simply speaking, non-English speaking drivers can be put out of service in the U.S. A recent addition to the Commercial Vehicle Safety Alliance (CVSA) Out-of-Service Criteria now allows law enforcement officers to place truckers out of service if they are unable to “communicate sufficiently” in the country in which they are operating.

The new provision, which has been debated for some time, 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. If the driver is unable to communicate sufficiently to understand and respond to official inquiries and direction... place driver out of service.”

Previously, there was nothing in the CVSA’s out-of-service criteria that allowed enforcement officers to place a driver who could not speak or understand English while in the United States out of service. However, Part 391.11 of the Federal Motor Carrier Safety Regulations requires that drivers be able to read and speak English. For some time, certain trucking groups have pushed to add violations of the English-speaking requirement to the out-of-service criteria, but political considerations prevented that. The NAFTA agreement, Mexico being a member of CVSA, French-speaking Quebec, and the fear of legal action, were just some of the arguments in opposition to adopting the change. There has been ongoing concern that if the existing FMCSA rules were enforced, Mexico, or even Quebec, could retaliate against U.S. drivers unable to speak Spanish or French. However, because Canada is officially bilingual, the issue primarily hinges on Mexico.

The issue came up again at a recent meeting and the new criteria received heavy support from enforcement officials involved in the CVSA. Of particular concern to those members was the ability of officers to communicate during inspections. Many officers view this more as an inspector safety problem, because their inspector must get under the equipment to check brakes, chassis, things like that. They are afraid that if the driver misunderstands the instructions, they may get an inspector run over.

The criteria could affect the entry of Mexican drivers under the NAFTA agreement. Carriers cannot afford to have large numbers of drivers placed out of service until they learn English, and the possibility that drivers with limited English skills could be placed out of service may lead carriers to take another look at hiring drivers from foreign countries. The rule is not targeted at one language or one group of drivers. Different parts of the United States experience concentrations of different nationalities of non-English speaking drivers. For example, the Operation Safe Road inspection in Illinois focused on drivers who spoke Eastern European languages.

CVSA members include state, provincial and federal officials responsible for enforcing motor carrier safety laws in the United States, Canada and Mexico. Its membership includes all 50 states, all 13 Canadian provinces and territories, the country of Mexico and several U.S. territories. In addition to government officials, the group includes trucking associations, truck and bus companies, insurance companies, research organizations, manufacturers, drivers and others. I was an Associate Member myself in 1989. For years, these groups have worked together to develop minimum standards for commercial vehicle inspections and out-of-service criteria.

What effect the new criteria will have remains to be seen, but when carriers start having to replace drivers out on the road after they have been put out of service, I’m sure things will change. The criteria, for example, does not specify exactly what constitutes “communicating sufficiently” but it does give U.S. inspectors and law enforcement a tool to deal with non-English speaking drivers.

A: I’m sure that everyone has heard the term of getting a “deuce” when they got caught driving under the influence (0.02). Now motor carriers face another version of this infamous number. Section 222 of the Motor Carrier Safety Improvement Act of 1999. Yes, I said 1999. It seems that the Federal Motor Carrier Safety Administration finally clarified its policy implementing this section, which requires the agency to assess maximum statutory penalties if a person is found to have committed a pattern of violations of critical or acute regulations, or previously committed the same or a related violation of critical or acute regulations. Notice the “key word” in this sentence is “requires” - not may or could. To ensure uniformity in implementing Section 222, FMCSA Service Centers will not be permitted to settle Section 222 cases for less than the maximum penalty assessed. The FMCSA has stated that the industry will be best served by using enforcement cases closed after September 8, 2000.

A: Two places: you can go to NTA's website at www.ntassoc.com and click on Wayne’s World, or you can go to the 10-4 website at www.tenfourmagazine.com.

~ Send your questions to Wayne Schooling at NorthAmerican Transportation Association, 2533 N. Carson St, Suite 346, Carson City, NV 89706-0147 or send them to wayne@ntassoc.com. For more information about the NTA call (800) 805-0040. And as always, until next month, “Drive Safe - Drive Smart!”