Roadside Inspections and Corrective Actions for other than Maintenance Issues?

I was visiting with an attorney I know that handles Whistle Blower Protection Act cases for drivers. He asked what does the FMCSA do about carriers with multiple citations where drivers cannot speak English?

49 CFR Part §391.11(b)(2) states:

(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;

In the wake of the crash in Colorado that took the lives of four people and 28 cars and the carrier going out of business one has to wonder how many other carriers have the same problem?

Supposedly the driver involved in the crash is stating he cannot speak English. He drove past the runaway truck ramp continuing to gain speed.

Part §396.9(d)(3):

(3) Within 15 days following the date of the inspection, the motor carrier or intermodal equipment provider shall—

(i) Certify that all violations noted have been corrected by completing the “Signature of Carrier/Intermodal Equipment Provider Official, Title, and Date Signed” portions of the form; and

(ii) Return the completed roadside inspection form to the issuing agency at the address indicated on the form and retain a copy at the motor carrier operating the vehicle or at a facility of the intermodal equipment provider within 24 hours, the driver shall immediately mail, fax, or otherwise transmit the report to the motor carrier and intermodal equipment provider.

(2) Motor carriers and intermodal equipment providers shall examine the report. Violations or defects noted thereon shall be corrected in accordance with §396.11(a)(3). Repairs of items of intermodal equipment placed out-of-service are also to be documented in the maintenance records for such equipment.

The dilemma is that Part 396 applies to maintenance and Part 391 applies to driver qualification. In my humble opinion the issue presents a loophole for violations of Part §383 CDLs, §387 insurance and Part §391 driver qualification (DQ.) For Part §390 vehicle marking citations I believe it is easily arguable that vehicle markings are maintenance related and as such can be corrected in the maintenance program; however, when a driver is cited for CDL issues per Part §383 or the carrier is cited for insurance issues per Part §387 or the driver is cited for DQ issues per Part §391 or a driver is cited for vehicle operation issues per Part §392 or hours of service per Part §395 the requirements of part §396 leave a gaping hole in regard to corrective actions as Part §396 applies to maintenance related issues.

What do carriers do when a driver is cited for part §391.11(b)(2)? Do carriers have remedial ESL classes? For some reason I doubt it.. What does the FMCSA or its state partners do when roadside inspection history indicates the same driver was cited for Part §391.11(b)(2) multiple times? Does the FMCSA’s Efotm have an English test for the FMCSA to issue to the driver to confirm or dispel the issue? 

I know several years ago Part §391.11(b)(2) was added to CVSA’s OOS Criteria; however, only lasted a year or two and was removed due to complaints that Spanish speaking drivers were at an advantage and the OOS was applied mostly to drivers that spoke languages other than Spanish.

Carriers need to step up and assure they train their drivers per Part §390.3(e)(2) states:

(e) Knowledge of and compliance with the regulations. (1) Every employer shall be knowledgeable of and comply with all regulations contained in this subchapter that are applicable to that motor carrier's operations.

(2) Every driver and employee involved in motor carrier operations shall be instructed regarding, and shall comply with, all applicable regulations contained in this subchapter.

I see more and more carriers going by way side. Carriers need to address their exposure and reduce their risk/s.

Be safe.