HF 2477 (LSB 6154HH (3) 91)

HOUSE FILE 2477

BY  THOMSON

A BILL FOR

An Act relating to English language proficiency requirements for commercial drivers and commercial carriers, providing penalties, and making penalties applicable.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  LEGISLATIVE FINDINGS.
   1.  Iowa has a compelling interest in ensuring vehicles and persons are safe on Iowa highways.
   2.  Federal regulations requires persons operating a commercial motor vehicle to possess sufficient English language proficiency necessary to converse with the general public, understand traffic signs and signals, respond to official inquiries, and make entries on reports and records.
   3.  Iowa is empowered to enforce federal regulations and has authority to regulate persons operating a commercial motor vehicle in this state.
   4.  Communication failures involving commercial motor vehicles contribute to collisions, injuries, and fatalities on Iowa highways.
   5.  Enhanced state enforcement mechanisms serve Iowa’s legitimate and compelling interest in protecting the traveling public.
   6.  These requirements apply neutrally to all persons operating a commercial motor vehicle regardless of national origin, ethnicity, race, or state of licensure.
    Sec. 2.  NEW SECTION.  321.187B  English language proficiency —— commercial drivers —— commercial carriers —— enforcement.
   1.  English language proficiency. A commercial driver shall not operate a commercial motor vehicle unless the driver is able to demonstrate proficiency in the English language sufficient to do all of the following:
   a.  Understand and respond to spoken English safety instructions.
   b.  Read and comprehend written materials required under federal law, including vehicle logs and inspection documents.
   c.  Demonstrate comprehension of emergency routing signs, traffic signals, and highway advisories.
   d.  Communicate essential safety information relevant to the operation of the commercial motor vehicle.
   2.  Enhanced safety interaction assessments.
   a.  A peace officer of the division of state patrol of the department of public safety is authorized to conduct structured English proficiency interactions during commercial vehicle inspections. The peace officer may request a commercial driver to demonstrate the driver’s proficiency in the English language with respect to any of the following:
   (1)  The commercial driver’s ability to understand directions in English related to commercial motor vehicle operation and safety.
   (2)  The commercial driver’s ability to comprehend logbook entries and ability to make required entries.
   (3)  The commercial driver’s ability to respond to equipment inspection questions requiring verbal communication.
   b.  A peace officer who requests a commercial driver to demonstrate the driver’s proficiency in the English language shall use a standardized, scripted assessment protocol approved by the department.
   c.  A peace officer shall advise a commercial driver of any adverse determination.
   3.  Out-of-service order.
   a.  A commercial driver who fails to demonstrate sufficient proficiency in the English language shall not operate a commercial motor vehicle until the person is able to demonstrate sufficient proficiency in the English language. A peace officer shall serve an out-of-service order to the driver.
   b.  A commercial driver may contest an out-of-service order through an administrative hearing with the department within thirty days.
   4.  Prohibited inferences. A peace officer shall not consider or make an inference based on a commercial driver’s nationality, ethnicity, race, accent, or state that issued the driver’s commercial driver’s license. A peace officer’s determination shall be based solely on the commercial driver’s English language proficiency.
   5.  Commercial carrier liability.
   a.  A commercial carrier who employs or engages the services of a person as a commercial driver who fails to demonstrate sufficient proficiency in the English language is subject to a one hundred thousand dollar civil penalty for each time a driver fails to demonstrate sufficient proficiency in the English language, to be imposed and collected by the department and deposited in the road use tax fund.
   b.  A commercial carrier who employs or engages the services of a person as a commercial driver is subject to enhanced penalties if the carrier is fined under paragraph “a” three or more times in a twenty-four-month period. In addition to the civil penalty imposed, the department may designate the carrier as a high-risk carrier.
   c.  A commercial carrier may contest the imposition of a civil penalty through a contested case proceeding under chapter 17A with the department within thirty days.
   6.  High-risk carrier designation.
   a.  A commercial carrier shall be designated as a high-risk carrier upon any of the following:
   (1)  Three or more violations of this section that involve the carrier within twenty-four months.
   (2)  A pattern of employing or engaging the services of persons as commercial drivers who fail to meet the federal English language proficiency requirements under 49 C.F.R. §391.11(b)(2).
   b.  A high-risk carrier is subject to any of the following:
   (1)  Increased inspection frequency, including mandatory inspections for all vehicles.
   (2)  Denial of special permits issued by the department, including hazardous materials permits, oversize and overweight permits, livestock permits, and agricultural-load permits.
   (3)  Required quarterly safety and compliance plans filed with the department.
   (4)  Escalating civil penalties for continued violations.
   (5)  Potential permanent bar from Iowa-issued permits upon continued noncompliance.
   c.  A commercial carrier may petition to be removed from high-risk status after twelve consecutive months with no attributable violations if the carrier submits to the department a compliance plan demonstrating corrective measures that is approved by the department.
   7.  Winter operations communications.
   a.  The department is authorized to declare winter emergency conditions when the weather conditions then occurring may affect highway traffic and safety. However, winter emergency conditions shall not be declared during a month in which no snow has fallen in this state during that month.
   b.  During declared winter emergency conditions, every commercial driver shall do all of the following:
   (1)  Demonstrate the driver’s ability to understand advisories broadcast by the department in the English language.
   (2)  Electronically acknowledge the existence of winter emergency conditions before entering affected interstate road systems.
   (3)  Demonstrate the driver’s English language comprehension to understand emergency routing signs and verbal instructions from enforcement personnel that are provided and given in English.
   c.  A commercial driver who is unable to demonstrate English comprehension during winter emergency conditions may be denied entry to certain highway corridors, restricted to designated routes with enhanced supervision, or issued an out-of-service order until conditions permit safe travel, as determined by the department.
   d.  The department shall consider the state’s compelling interest in preventing weather-related commercial vehicle crashes when determining the appropriate restrictions to place on a commercial driver under paragraph “c”.
   8.  Inspection prioritization.
   a.  The department may implement a system to prioritize inspections of commercial drivers to determine whether a driver can comply with subsection 1. The system may be implemented at weigh stations and a commercial driver demonstrating communication difficulties during initial screening shall receive a mandatory full inspection.
   b.  A commercial driver who fails to demonstrate compliance with subsection 1 shall be added to the department’s intrastate enforcement system and commercial carriers who are attributable to patterns of communication-related violations shall receive higher inspection frequency through an inspection prioritization algorithm.
   9.  Rebuttable presumption of gross negligence.
   a.  In any civil action for damages arising from the operation of a commercial motor vehicle within this state, proof that the commercial driver was unable to comply with subsection 1, at the time of the accident or crash, constitutes prima facie evidence of gross negligence on the part of both the commercial driver and the commercial carrier that employed or engaged the services of the driver, if applicable.
   b.  A commercial driver or commercial carrier may rebut the presumption by showing any of the following:
   (1)  The commercial driver possessed sufficient English proficiency as required by federal law.
   (2)  The commercial driver’s communication ability did not contribute to the accident or crash.
   (3)  The alleged injury resulted solely from causes unrelated to the commercial driver’s communication ability.
   c.  A person shall not make an inference based on a commercial driver’s nationality, race, ethnicity, accent, or state of licensure. The presumption under paragraph “a” arises solely from a commercial driver’s demonstrated inability to communicate in English in circumstances where such communication is required for the safe operation of a commercial motor vehicle.
   10.  Private right of action.
   a.  A commercial carrier operating in this state shall ensure that each commercial driver assigned to operate a commercial motor vehicle in this state possesses sufficient English proficiency required under 49 C.F.R. §391.11(b)(2) and shall not request or authorize a person to operate a commercial motor vehicle if the person does not meet that requirement. In addition, a commercial carrier shall not deploy a commercial driver in this state who cannot do any of the following:
   (1)  Communicate in English for safety purposes.
   (2)  Respond to peace officer instructions in English.
   (3)  Understand traffic signs in the English language.
   (4)  Follow the department’s emergency routing instructions given in the English language.
   b.  Any person who suffers bodily injury, death of a family member, property damage, or economic loss proximately caused by a commercial carrier’s violation of paragraph “a” may bring a civil action against the commercial carrier.
   c.  A person who notifies a law enforcement agency, prior to the event that caused injury or economic loss, of a commercial driver’s apparent inability to sufficiently understand the English language under 49 C.F.R. §391.11(b)(2) shall be deemed to have established prima facie evidence of all of the following:
   (1)  The commercial carrier’s negligence in assigning the commercial driver.
   (2)  The commercial carrier’s knowledge or constructive knowledge of the commercial driver’s noncompliance.
   (3)  Causation, if the injury resulted from the commercial driver’s miscommunication, misunderstanding of signage, or failure to follow emergency instructions.
   d.  The private right of action shall also be available when all of the following occurred:
   (1)  A person reported a commercial driver who appeared to be unable to comply with 49 C.F.R. §391.11(b)(2).
   (2)  A peace officer or the department issued an out-of-service order, or a peace officer or the department failed to act within four hours despite credible evidence of noncompliance.
   (3)  The commercial carrier knowingly or negligently deployed a commercial driver who did not comply with 49 C.F.R. §391.11(b)(2).
   (4)  The reporting individual suffered harm, including but not limited to being delayed or endangered by an incident involving the noncompliant driver, property damage, business interruption, delayed shipment, personal injury, economic loss from a resulting road closure, or other demonstrable harm.
   e.  If the finder of fact determines that the commercial carrier knew or, in the exercise of reasonable care, should have known that a commercial driver was not sufficiently proficient in the English language, the plaintiff is entitled to all of the following:
   (1)  Six times the amount of actual damages.
   (2)  Reasonable attorney fees and costs.
   (3)  Appropriate injunctive relief, including an order restricting the commercial carrier from deploying noncompliant drivers in this state.
   f.  The motor carrier may rebut the presumption or avoid enhanced damages by proving any of the following:
   (1)  The commercial driver met federal English proficiency requirements.
   (2)  The commercial driver’s communication ability did not contribute to the incident.
   (3)  The incident resulted solely from causes unrelated to the commercial driver’s communication ability.
   g.  To have standing to bring a cause of action, a plaintiff must demonstrate actual, specific, particularized harm. Observation of a violation alone shall not confer standing.
   11.  Enhanced penalties. The department shall impose enhanced administrative penalties including an additional civil penalty not to exceed one hundred thousand dollars per violation to be collected by the department and deposited in the road use tax fund, and commercial carrier sanctions against a culpable person for any of the following:
   a.  Failure to obey officer instructions due to demonstrated communication inability.
   b.  Ignoring or failing to comprehend detour or emergency signage.
   c.  Entering restricted-weather corridors without demonstrated comprehension of warnings.
   d.  Any violation where communication failure contributed to a safety incident.
   e.  Repeat violations or violations resulting in injury.
   12.  Enforcement and training. The department shall adopt rules pursuant to chapter 17A for all of the following:
   a.  Standardized, scripted English comprehension assessment protocols that should be completed within approximately three minutes and structured as a safety conversation.
   b.  Training on constitutional limits and procedural requirements.
   c.  Antiprofiling protections ensuring officers do not consider race, ethnicity, national origin, or accent as factors in initiating assessments.
   d.  Documentation and recordkeeping requirements for all enhanced safety interaction assessments.
   13.  Data reporting and transparency. The department shall publish an annual report including all of the following:
   a.  Total number of enhanced safety interaction assessments conducted.
   b.  Number and rate of enhanced safety interaction violations.
   c.  Carrier violation patterns and high-risk carrier designations.
   d.  Safety outcomes, including incidents involving factors related to communications and miscommunications.
   e.  Demographic data presented in an aggregate, nonidentifying manner to monitor for potential disparate impact.
   f.  Recommendations for program improvements.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   Under federal law, a person who is operating a commercial motor vehicle (commercial 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.
   This bill relates to the enforcement of this federal regulation. The bill requires commercial drivers to have sufficient English language proficiency, makes commercial carriers liable for violations involving commercial drivers that do not have sufficient English language proficiency, and authorizes state patrol officers to inspect a commercial driver to determine whether the driver complies with federal English language proficiency requirements.
   A commercial carrier who violates the bill is subject to a $100,000 civil penalty for each violation, imposed and collected by the department of transportation (DOT) and deposited in the road use tax fund. Repeat violators are subject to enhanced penalties, including restrictions placed on where a commercial driver is authorized to operate a commercial motor vehicle. A commercial driver may be subject to an out-of-service order for violating the bill. An out-of-service order restricts a person’s authorization to operate a commercial motor vehicle and carries additional penalties under Code section 321.208 for violating the out-of-service order.
   The bill prohibits inferences from being made based on a commercial driver’s nationality, race, ethnicity, accent, or state of licensure.
   A person may have standing to bring a private right of action against a commercial carrier who violates the bill, as described in the bill.
   The DOT is required to adopt rules necessary to implement the bill and must publish a report on enforcement of the bill.
   By operation of law, it is a simple misdemeanor for a person to do an act forbidden or to fail to perform an act required by the bill. A simple misdemeanor is punishable by confinement for no more than 30 days and a fine of at least $105 but not more than $855.