There’s been much news lately about the English Language Proficiency (ELP) requirements in federal regulations. In the span of a few days in April, President Trump signed an executive order requiring that ELP violations be considered out-of-service (OOS), and a few days later, CVSA did just that, adding ELP to its OOS criteria effective June 25, 2025. With this flurry of activity, many are asking what exactly this means, how ELP determinations will be made, and when drivers will be placed in OOS. FMCSA has also issued its guidance memo that offers some general direction of what carriers and drivers should expect roadside. As motor carriers contemplate their approach to compliance, here is a brief review of the history of this requirement that might offer some assistance and shed light on its future.

The ELP requirements date back to 1936 when the newly promulgated Motor Carrier Safety Regulations were authored by the Interstate Commerce Commission (ICC). And there it sat, relatively unchanged until 1970, when the first version of the Federal Motor Carrier Safety Regulations was published.

In 1997, the Federal Highway Administration (FHWA) issued an Advance Notice of Proposed Rulemaking indicating they were contemplating changes to the rule. The ANPRM was issued in part due to a letter from the ACLU noting that the rule was inconsistent and in conflict with Title VI of the Civil Rights Act of 1964. In July of 2003, FMCSA withdrew the FHWA ANPRM. In its withdrawal, FHWA noted:

“In the ANPRM, the FHWA stated that § 391.11(b)(2), as promulgated by the former Interstate Commerce Commission (ICC) in 1936, was intended to be enforced through the motor carrier employer. As noted in the ANPRM, the ICC specifically stated that it was the motor carrier employer’s responsibility to evaluate the driver’s proficiency in the English language. In addition, FHWA noted that the regulation was not intended to be enforced at the roadside. The employer was presumed to know what communication skills may be necessary for the type of cargo handled, the route taken, and the public contact required. The FHWA went on to say that it had never made speaking the English language a specific pre-requisite for obtaining a Commercial Driver License (CDL), and in fact, proposed, and later authorized, administration of the CDL test in foreign languages.”

At the time, while it was a violation that was written on the roadside, it was not considered an OOS violation. In 2003, the Commercial Vehicle Safety Alliance (CVSA), the authors of the North American Standard Out-of-Service Criteria, in search of guidance on how to enforce the rules without an objective standard, petitioned FMCSA to consider implementing several changes, including, among other things, addressing the inconsistency with the rules and licensing standards, and to develop a standard testing procedure to administer roadside. FMCSA quietly denied this Petition.

It wasn’t until April 1, 2005, that it was first added to the North American Standard Out-of-Service Criteria, requiring that the driver be put out of service if he or she is “unable to communicate sufficiently to understand and respond to official inquiries and directions.” In 2007, FMCSA issued a policy memorandum (MC-ECE-0005-2007) providing direction to officers on how to gauge English proficiency and when to place the driver OOS.

The memo instructed inspectors to conduct the driver interview portion of a roadside stop only in English and to use the responses to the questions as the basis for their determination. The memo included an attachment detailing strategies to employ with non-native English speakers and examples of driver interview questions. It instructed inspectors to explain in Spanish “or other languages commonly used in communicating with foreign drivers” that they must conduct the driver interview in English and that drivers must respond in English to establish proficiency. Inspectors were instructed to “speak slowly but naturally” and were provided a list of questions like: “Where did you start your trip today?” and “How long have you been driving today?” to guide the interview. The memo did not stipulate how a driver could “cure” the OOS violation and reestablish his or her qualification to operate a CMV.

From 2007 to 2016, enforcement of the ELP as an out-of-service (OOS) condition varied considerably by jurisdiction. This was driven in part by litigation but also by concerns about officer safety and practicality. Using data graciously provided by Fusable, we were able to evaluate the impact of the violation becoming an OOS condition. In the chart below, we can see that after the violation was added to the OOS criteria, OOS violations quickly spiked and then stayed relatively consistent. At the same time, the number of non-OOS ELP violations rose until, in 2014, the two converged. Then, in 2015, the number of OOS violations quickly declined, which corresponds with when CVSA removed the violation from the OOS Criteria.

In 2012, as FMCSA sought to operationalize its Mexican Carrier Long Haul Pilot Program, FMCSA issued another memo outlining steps investigators could take to determine English proficiency during the Pre-Authorization Safety Audits (PASA) designed to ensure approved Mexican carriers and drivers could meet proficiency requirements. This guidance outlined six specific questions drivers needed to answer to be considered proficient.

1. Do you speak English?
2. A question about the starting point of a recent trip.
3. A question about where the driver is going next.
4. A question about hours of duty.
5. A question that requires the driver to provide a document.
6. Question about a vehicle component or system.

Answering “no” to the first question constituted an automatic failure of the PASA. If the driver failed to answer two or more of the subsequent questions correctly, the driver would fail the interview. If the driver passed this portion, the interview moved to phase two in which the driver was given a list of 22 road signs with a mixture of words and symbols. To pass this portion, the driver needed to be able to explain the meaning of at least 19 of the 22 signs.

In 2015, CVSA voted to drop ELP from the OOS criteria, citing the lack of substantive data tying ELP to highway safety, essentially determining that not speaking English proficiently did not constitute an “imminent hazard” of the type the OOS criteria is meant to prevent.

In 2016, FMCSA issued another enforcement memo designed to assist drivers and roadside enforcement in communicating in situations of limited English proficiency. This new guidance superseded the previous 2007 memo and made clear that ELP violations should not be considered OOS. It also suggested that roadside enforcement use tools like Google Translate or “i-Speak” cards to aid communication with the driver and that if the “employing motor carrier provides sufficient information advising that the employee has completed English language training, it should be considered sufficient for addressing these violations.’ This memo had been the controlling guidance from FMCSA until last month when President Trump issued his Executive Order.

Again, thanks to data provided by Fusable, we can see the combined relative impact of removing the violation from the OOS criteria and the 2016 enforcement memo. From 2016 on, we can see the number of violations plummet. In fact, in 2024, the number of violations for ELP was down 94% from its 2015 total of 99,083 violations.

President Trump’s EO 14224 instructed FMCSA to rescind the 2016 enforcement memo within 60 days and “to ensure the out-of-service criteria are revised such that a violation of the English language proficiency requirements results in the driver being placed out-of-service.” It also directed FMCSA to provide new enforcement guidance to assist in enforcing the rule by outlining revised inspection procedures. CVSA, for its part, enacted the ELP OOS Criteria change that will go into effect June 25, 2025, and is planning to petition FMCSA to incorporate the ELP OOS condition into the FMCSRs, similar to existing language on other OOS conditions reflected in 49 CFR 392.5, and to harmonize the ELP standards in Part 391 with the CDL standards in Part 383.

The FMCSA guidance memo was released on May 20, 2025, and became effective immediately. It also rescinded the 2016 guidance memo as was directed in the Executive Order. While the guidance itself has many details redacted, it does offer a glimpse of what drivers can expect during roadside inspections and can assist motor carriers in determining how to respond and prepare their drivers to ensure their fleet continues delivering America’s freight. The FMCSA memo indicates its inspectors will begin using the outlined evaluation methods immediately. CVSA has reiterated a June 25^th effective date for its OOS Criteria. Either way, expect, at least initially, uneven enforcement nationwide. Hopefully, this trip down memory lane helps carriers as they prepare to respond to what stands to be a significant operational impact for many in the industry. For additional information on this topic and some suggested actions carriers can take in preparation for this change, see this link.