If Secretary of Transportation Sean P. Duffy gets his way, the Department of Transportation (DOT) will find ways to penalize shippers who use trucking companies employing drivers or owner-operators who can’t speak English sufficiently under federal regulations.
Duffy announced his intentions during a Halloween interview on the Fox News channel, where he also revealed that DOT will target bad truck driver training schools that he slammed as “diploma mills” because he deems them responsible for graduating students who lack adequate language and driving skills, and as such pose a danger on the nation’s highways.
The DOT secretary has taken point on the Trump Administration crusade to remove unqualified drivers, particularly those seen as being in violation of the existing federal requirement that drivers be able to comprehend English. With the states responsible for granting these interstate licenses to commercial drivers, some with anti-Trump leadership have bristled at being ordered to do this.
The threat of possible loss of transportation funds is the stick that Duffy has not been shy about brandishing to get some of these states in line regarding the federal English language requirement, particularly California, which recently lost $40 million in federal transportation funds and has been threatened with an additional loss of $160 million.
During his Halloween interview Duffy pointedly declared, “We also have to take a look at shippers, people who load up these rigs and send them across the country. There’s a lot of interaction between the shipper and the trucker. If you can’t speak English, those should be held to account.”
The previous day, at the swearing in ceremony for Derek Barrs, the new director of the Federal Motor Carrier Safety Administration (FMCSA), Duffy also threatened “serious consequences” for truck driver training schools that graduate non-English comprehending drivers. He also promised that DOT will continue to work with the Department of Homeland Security (DHS) to arrest and deport more foreign drivers who are operating illegally.
This has already happened in at least two instances where DOT and state highway patrols have worked closely with DHS in roadside sweeps intended to apprehend illegal operators. In these roadside inspections a number of the noncitizens who were found to be driving also were discovered to have criminal records, according to Duffy.
There have been no further announcements or explanations forthcoming from Duffy since his Halloween TV interview, and his previous announcements raise more questions than answers. The most immediate ones involve how the new requirements will be framed and what measures can DOT take to enforce it. Even Duffy’s boss, President Doanld Trump, has learned that there are legal limits to what can be simply decreed or ordered.
Congress could pass a law that DOT could use for this purpose, but Duffy markedly failed to mention Congress in his interview. The agency itself could choose to initiate a rulemaking proceeding, but no enforcement action of such a rule can be undertaken until it is finalized, a process that can take months and sometimes years to complete.
Administrative Obstacle Course
A law called the Administrative Procedures Act (APA) requires federal agencies to go through a multi-step process before issuing a new regulation. This process includes publicly posting the proposed rule, gathering comments and input from the public through a period set aside for that process, which could possibly involve public hearings. The process even requires conducting studies to ascertain the proposed rule’s environmental impact (minimal in this case) and impact on small businesses (more likely to be very significant).
If DOT reaches the point that it issues a final rule, it faces the very real possibility that someone will mount a court challenge to it. A federal court can then decide to issue a temporary injunction blocking the agency from conducting any enforcement activity while the challenge makes its way through the court system.
Also keep in mind that DOT lacks a police force of its own and relies on state agencies to enforce federal rules regarding truck drivers operating in interstate commerce, hauling freight from one state to another. This also limits DOT’s reach even today. It is the holders of these interstate commercial driver licenses (CDLs) who come under the federal department’s jurisdiction. Drivers who operate solely within the borders of a single state, including large ones like California and Texas, are subject only to that state’s laws.
This is particularly the case when it comes to the federal requirement that a commercial truck or bus driver be able to read and communicate in English. It has been normal for many years for drivers with little grasp of English to serve ports like Los Angeles and Long Beach in drayage operations, for example. In the 1990s I heard of one massive port facility in the Northwest where signs in the freight yard were written in five different languages, including Russian and Polish.
This difference between interstate and intrastate jurisdiction also would affect attempts to hold shippers and freight brokers liable for drivers who fail to meet federal requirements. Even if DOT goes through the APA process and comes out the other end with a new rule holding these businesses liable, how would the federal government go about enforcing it?
Another obstacle is how shippers and brokers could be expected to enforce this requirement. Brokers never have any face-to-face interaction with drivers, and shippers only do so when a driver shows up at a facility to make a pickup or delivery. It is possible that they will require carriers to stipulate that they are following the law through an affidavit or contractual language, including possibly a statement added to a bill of lading.
Rarely do federal regulations impose criminal liability. Instead, those who run afoul of them are more often assessed civil fines and penalties. But if there is a federal rule that a business can be found to have violated, it also can incorporate what is termed the right to private action, meaning the shippers and brokers could become the targets of lawsuits mounted by enterprising lawyers.
In the case of highway accidents, if a commercial driver is found to have violated federal regulations, a tort lawyer suing the driver’s employer and who is searching for deeper pockets in order to obtain a richer judgment, can easily be imagined stretching the current realm of civil liability to include a shipper and freight broker.
In the meantime, customers and carriers who need to get their freight delivered in a timely manner probably would be wise to make sure the drivers are suitably proficient in English before sending them out on the road with your cargo on board their trucks if they are pulled over by law enforcement.
