We are revisiting the English language proficiency (ELP) requirements for commercial drivers following a few recent developments in Washington and one on the other side of the continent. For now, at least, it does not appear that the actions in Washington mean as much as the one in California.
As part of the most recent continuing appropriations legislation, Congress included language directing the U.S. Department of Transportation to ensure that violations of 49 CFR 391.11(b)(2) – the English language proficiency requirement – trigger out-of-service (OOS) orders. In practice, this mirrors the enforcement policy that took effect June 25, 2025, following an April 28 executive order by President Trump and subsequent action by the Commercial Vehicle Safety Alliance (CVS).
It’s not clear that the language in the funding bill really changes anything in terms of how the regulation and OOS policy are being enforced. Although it arguably could be read as requiring that all ELP violations result in OOS orders – a practice that would create huge problems for cross-border truck traffic with Mexico – the implied discretion given to DOT in the language and another development discussed below make that outcome unlikely.
Rather, the goal appears to be establishing that the policy of making ELP violations OOS violations is a governmental one and not just a decision by CVSA. Even with the executive order, technically it was CVSA, which is not a governmental entity, that took the action to make failure to communicated adequately in English an OOS violation.
It’s worth noting that the provision in the appropriations bill has legal effect only until the end of the fiscal year on September 30 unless Congress chooses to retain it in the next appropriations bill.
Existing policy outlined in a May 20 guidance document issued by the Federal Motor Carrier Safety Administration is that drivers cited for ELP violations while operating in the U.S.-Mexico border commercial zones are not to be placed OOS. FMCSA implicitly reaffirmed that policy on the same day Congress passed the funding bill.
Since June 25, roughly 71% of all ELP violations have occurred in the commercial border zones with Mexico, meaning only about 29% of violations nationwide have resulted in OOS orders. Eliminating that exception – an arguable reading of the congressional mandate – would be highly disruptive to cross-border freight flows, and new agency guidance suggests that FMCSA is not contemplating tightening enforcement at the border.
On February 3, in response to questions posed to the agency by CSVA at a training meeting in September, FMCSA published clarifying FAQs on its regulatory guidance webpage confirming that:
The border-zone exception applies regardless of driver nationality or CDL origin.
“Border commercial zones” are those defined under 49 CFR Part 372, Subpart B and are near the Mexican border.
These clarifications probably do not state anything more than what FMCSA intended on May 20, but the law enforcement personnel posing the questions understandably need clarity since they are the ones on the front lines.
Given California’s sheer size, large immigrant populations not only from Latin America but also Asia, and its importance in moving intermodal freight and agricultural products, the number of ELP OOS violations in the state clearly will be large.
Indeed, according to data through the beginning of February, California had – since January 1 – racked up enough OOS violations to rank 15th nationwide in total such violations even though almost all the rest of the country had been enforcing it since late June. California is outpacing every state but Texas in the number of ELP OOS violations and likely will rank at least No. 2 by sometime this spring.
Perhaps more important than the number of drivers sidelined, however, is how critical California is for important types of freight and the likely effect OOS enforcement will have in discouraging many drivers from operating in the state.
As of early February, 13,475 ELP-related OOS orders had been issued nationwide since enforcement began in late June. More than 12,000 of those were tied to unique truck vehicle identification numbers (VINs), serving as the closest proxy we have for the number of individual drivers affected since we have no publicly available identifiers for unique drivers. In reality, though, many trucks with multiple violations probably involve drivers who replaced drivers who previously were disqualified.
Based on the peak run rate of September through November (up to Thanksgiving), FTR had estimated that ELP enforcement could sideline up to 25,000 drivers annually, not counting any drivers who might leave the market to avoid scrutiny. However, we based that projection on the assumption that California would hold firm in not enforcement ELP. Now that California is participating, the annual number is more like 29,000 or so.
We continue to believe that ELP enforcement in isolation – probably even taking into account the deterrent effect, which we do not believe is very great – is not a market mover nationwide because enforcement is so concentrated geographically. However, in an environment where active driver capacity has already fallen so sharply, ELP is a significant stress on an already tightening market.
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