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Proposed Rule2026-16288

English Language Proficiency; Out of Service Criteria

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Published

August 10, 2026

Issuing agencies

Transportation DepartmentFederal Motor Carrier Safety Administration

Abstract

FMCSA proposes to codify the English language proficiency (ELP) driver qualification requirement as an out-of-service (OOS) violation. The rulemaking would ensure uniform enforcement by aligning the Federal Motor Carrier Safety Regulations (FMCSR) with the current enforcement tolerances in the North American Standard Out-of-Service Criteria issued by the Commercial Vehicle Safety Alliance (CVSA). The rulemaking responds to a petition from CVSA.

Full Text

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<title>Federal Register, Volume 91 Issue 152 (Monday, August 10, 2026)</title>
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[Federal Register Volume 91, Number 152 (Monday, August 10, 2026)]
[Proposed Rules]
[Pages 51422-51431]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-16288]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 390 and 391

[Docket No. FMCSA-2026-0826]
RIN 2126-AC99

English Language Proficiency; Out of Service Criteria

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FMCSA proposes to codify the English language proficiency
(ELP) driver qualification requirement as an out-of-service (OOS)
violation. The rulemaking would ensure uniform enforcement by aligning
the Federal Motor Carrier Safety Regulations (FMCSR) with the current
enforcement tolerances in the North American Standard Out-of-Service
Criteria issued by the Commercial Vehicle Safety Alliance (CVSA). The
rulemaking responds to a petition from CVSA.

DATES: Comments must be received on or before October 9, 2026.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2026-0826 using any of the following methods:
<bullet> Federal eRulemaking Portal: Go to <a href="https://www.regulations.gov/docket/FMCSA-2026-0826/document">https://www.regulations.gov/docket/FMCSA-2026-0826/document</a>. Follow the online
instructions for submitting comments.
<bullet> Mail: Dockets Operations, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, W58-213, Washington, DC
20590-0001.
<bullet> Hand Delivery or Courier: Dockets Operations, U.S.
Department of Transportation, 1200 New Jersey Avenue SE, W58-213,
Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
<bullet> Fax: (202) 493-2251.

FOR FURTHER INFORMATION CONTACT: Bill Mahorney, Enforcement Division,
Office of Safety, FMCSA, 1200 New Jersey Avenue SE, Washington, DC
20590-0001; (202) 493-0001; <a href="/cdn-cgi/l/email-protection#05676c69692b68646d6a776b607c45616a712b626a73"><span class="__cf_email__" data-cfemail="8defe4e1e1a3e0ece5e2ffe3e8f4cde9e2f9a3eae2fb">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION: FMCSA organizes this NPRM as follows:

I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy
II. Executive Summary
A. Purpose and Summary of the Regulatory Action
B. Summary of Major Provisions
C. Costs and Benefits
III. Abbreviations
IV. Legal Basis
V. Background
VI. Discussion of Proposed Rulemaking
VII. International Impacts
VIII. Section-by-Section Analysis
IX. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review)
and DOT Rulemaking Procedures
B. E.O. 14192 (Unleashing Prosperity Through Deregulation)
C. Advance Notice of Proposed Rulemaking
D. Regulatory Flexibility Act
E. Assistance for Small Entities
F. Unfunded Mandates Reform Act of 1995
G. Paperwork Reduction Act
H. E.O. 13132 (Federalism)
I. Privacy
J. E.O. 13175 (Indian Tribal Governments)
K. National Environmental Policy Act of 1969
L. Rulemaking Summary

I. Public Participation and Request For Comments

A. Submitting Comments

If you submit a comment, please include the docket number for this
NPRM (FMCSA-2026-0826), indicate the specific section of this document
to which your comment applies, and provide a reason for each suggestion
or recommendation. You may submit your comments and material online or
by fax, mail, or hand delivery, but please use only one of these means.
FMCSA recommends that you include your name, mailing address, email
address, or telephone number in the body of your document so FMCSA can
contact you if there are questions regarding your submission.
To submit your comment online, go to <a href="https://www.regulations.gov/docket/FMCSA-2026-0826/document">https://www.regulations.gov/docket/FMCSA-2026-0826/document</a>, click on this NPRM, click ``Comment,''
and type your comment into the text box on the following screen.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing.
FMCSA will consider all comments and material received during the
comment period.
Confidential Business Information (CBI)
CBI is commercial or financial information that is both customarily
and actually treated as private by its owner. Under the Freedom of
Information Act (5 U.S.C. 552), CBI is exempt from public disclosure.
If your comments responsive to the NPRM contain commercial or financial
information that is customarily treated as private, that you actually
treat as private, and that is relevant or responsive to the NPRM, it is
important that you clearly designate the submitted comments as CBI.
Please mark each page of your submission that constitutes CBI as
``PROPIN'' to indicate it contains proprietary information. FMCSA will
treat such marked submissions as confidential under the Freedom of
Information Act, and they will not be placed in the public docket of
the NPRM. Submissions containing CBI should be sent to Brian Dahlin,
Chief, Regulatory Evaluation Division, Office of Policy, FMCSA, 1200
New Jersey Avenue SE, Washington, DC 20590-0001 or via email at
<a href="/cdn-cgi/l/email-protection#086a7a616966266f266c6960646166486c677c266f677e"><span class="__cf_email__" data-cfemail="3654445f575818511852575e5a5f587652594218515940">[email&#160;protected]</span></a>. At this time, you need not send a duplicate
hardcopy of your electronic CBI submissions to FMCSA headquarters. Any
comments FMCSA receives not specifically designated as CBI will be
placed in the public docket for this rulemaking.

B. Viewing Comments and Documents

To view any documents mentioned as being available in the docket,
go to <a href="https://www.regulations.gov/docket/FMCSA-2026-0826/document">https://www.regulations.gov/docket/FMCSA-2026-0826/document</a>, and
choose the document to review. To view comments, click this NPRM, then
click ``Document Comments.'' If you do not have access to the internet,
you may view the docket online by visiting Dockets Operations in room
W58-213 of the DOT West Building, 1200 New Jersey Avenue SE,
Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.

[[Page 51423]]

C. Privacy

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to inform its regulatory process. DOT posts these comments,
including any personal information the commenter provides, to
<a href="http://www.regulations.gov">www.regulations.gov</a> as described in the system of records notice DOT/
ALL 14 (Federal Docket Management System (FDMS)), which can be reviewed
at <a href="https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices">https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices</a>. The comments are posted without edits and are
searchable by the name of the submitter.

II. Executive Summary

FMCSA proposes to update the FMCSR to reflect that, under current
enforcement tolerances, a violation of 49 CFR 391.11(b)(2) is an OOS
violation. This rulemaking would make updates to sections 390.5,
390.5T, and 391.11(b)(2) to reflect that noncompliance with ELP
requirements will result in a driver being placed OOS, unless the
driver's current trip would not involve transportation in the United
States outside of the U.S.-Mexico border commercial zones. These
changes would align the FMCSR with current enforcement tolerances in
the North American Standard Out-of-Service Criteria from CVSA and
ensure uniform enforcement. The rulemaking is consistent with an April
19, 2026 revision to the CVSA OOS criteria, which narrows the previous
exception for placing drivers OOS for ELP violations in U.S.-Mexico
border commercial zones. FMCSA anticipates that the revision would
result in annual costs of approximately $14.4 million for motor
carriers.

III. Abbreviations

CBI Confidential business information
CE Categorical exclusion
CFR Code of Federal Regulations
CMV Commercial motor vehicle
CVSA Commercial Vehicle Safety Alliance
DOT Department of Transportation
ELP English language proficiency
E.O. Executive Order
FAQ Frequently asked questions
FHWA Federal Highway Administration
FMCSA Federal Motor Carrier Safety Administration
FMCSR Federal Motor Carrier Safety Regulations
FR Federal Register
ICC Interstate Commerce Commission
IRFA Initial Regulatory Flexibility Analysis
PIA Privacy Impact Analysis
PTA Privacy Threshold Assessment
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
OOS Out-of-service
RFA Regulatory Flexibility Act
UMRA Unfunded Mandates Reform Act of 1995
U.S.C. United States Code

IV. Legal Basis

This NPRM is consistent with the concurrent authorities of the
Motor Carrier Act of 1935 (49 U.S.C. 31502), as amended, and the Motor
Carrier Safety Act of 1984 (49 U.S.C. 31131, et seq.), as amended.
Section 204 of the Motor Carrier Act of 1935 provides that it shall be
the duty of the Interstate Commerce Commission (ICC) (now the Secretary
of Transportation, after the broad delegation of jurisdiction to the
Secretary under the ICC Termination Act of 1995) \1\ to regulate common
and contract carriers by motor vehicle as provided in that act, and
that ``to that end the Commission may establish reasonable requirements
with respect to . . . qualifications and maximum hours of service of
employees, and safety of operation and equipment.'' Motor Carrier Act,
sec. 204(a)(1)-(2). Section 204 further provides for the establishment
of similar regulations with respect to private carriers of property by
motor vehicle, if need therefore is found. See Motor Carrier Act,
section 204(a)(3). The Department of Transportation Act (Pub. L. 89-
670, 80 Stat. 931, Oct. 15, 1966) transferred the ICC's safety
authority and regulations to DOT (Section 6(e)(6)(C)), where those
functions were assigned to the Federal Highway Administration (FHWA),
and now to FMCSA (49 U.S.C. 113(f)). Most of the Motor Carrier Act of
1935 has been repealed, but the previous safety provisions have been
retained in 49 U.S.C. 31502(b).
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\1\ Public Law 104-88, 109 Stat. 803 (Dec. 29, 1995).
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The Motor Carrier Safety Act of 1984 (49 U.S.C. 31131 et seq.) was
intended to recodify the previous ICC and FHWA regulations. Section
206(e) of the 1984 Act provided that, if DOT failed to issue new
regulations consistent with the requirements of the statute, ``the
regulations pertaining to commercial motor vehicle safety which the
Secretary issued before such date of enactment and in effect on such
date of enactment shall, for purposes of this title, be deemed to be
regulations issued by the Secretary under this section'' Public Law 95-
554, Title II, 98 Stat. 2832, 2834 (Oct. 30, 1984). The provisions
listed in Section 206(a) were codified as 49 U.S.C. 31136(a)(1)-(4).
Thus, the 1984 Act intended to capture and recodify the detailed
regulations on commercial motor vehicle safety that the ICC and FHWA
had previously issued, including the requirement for ELP. Congress said
that even more clearly in the Senate Report on Title II of the 1984
Act: ``It is the intent of the Committee [on Commerce, Science, and
Transportation] that nothing in section 6 of the bill [which became
Section 206 of the 1984 Act] alter this state of affairs which has
developed under existing provisions of law. Rather the Committee
intends to reaffirm the scope of DOT's authority to regulate safety in
this area.'' S. Rep. No. 98-424, at 9 (1984). Pursuant to 49 U.S.C.
31502(b) and 31136(a), FMCSA may prescribe safety of operation
requirements for the qualification of drivers operating CMVs in
interstate commerce. This rulemaking addresses the qualifications of
motor carrier employees, consistent with the safe operation of CMVs.
This NPRM is consistent with the safe operation of CMVs, as
provided for in 49 U.S.C. 31136(a)(1), as the proposal would ensure
that drivers who cannot meet the minimum qualification requirements are
placed out of service. The remaining statutory factors and requirements
in section 31136(a), to the extent they are relevant, are also
satisfied here. In accordance with section 31136(a)(2), the requirement
under 49 CFR 391.11(b)(2) would not impose any responsibilities on CMV
drivers that would impair their ability to operate the vehicles safely.
This rulemaking does not address medical standards for drivers or
possible physical effects caused by driving CMVs (section 31136(a)(3)
and (a)(4), respectively). There is no basis to anticipate that this
rulemaking would lead to driver coercion (section 31136(a)(5)), as the
FMCSRs have required ELP since the 1930s and the rulemaking is
codifying current enforcement tolerances.
The FMCSA Administrator is delegated authority under 49 CFR 1.87 to
carry out the functions vested in the Secretary by 49 U.S.C. chapters
311 and 315 as they relate to CMV operators, programs, and safety.

V. Background

On December 23, 1936, as part of its newly-promulgated ``Motor
Carrier Safety Regulations,'' the ICC established an English language
requirement for drivers of motor vehicles operated in interstate or
foreign commerce by common and contract carriers. The original wording,
as contained in paragraph 3 of Part I [Qualification of Drivers]
required that, on and after July 1, 1937, ``no motor carrier shall
drive, or require or permit any person to drive, any motor vehicle
operated in interstate or foreign commerce, unless the person so
driving possesses the following

[[Page 51424]]

minimum qualifications: . . . (k) Ability to read and speak the English
language, unless the person was engaged in so driving on July 1, 1937
or within one year prior thereto, but in any case ability to understand
traffic and warning signs.'' 1 Motor Carrier Cases (M.C.C.) 1, at 18-
19; later published at 2 FR 144 (Jan. 22, 1937). The preamble to the
ICC decision stated that ``[i]t is evident that ability to read and
speak English is important to any adequate compliance with safety
regulations. Cognizance has been taken, however, of the existence in
certain areas of numbers of drivers in present service who are unable
to read or speak English, but even in these cases the ability at least
to understand traffic and warning signs is required'' 1 M.C.C. 1, at 7-
8.
On May 27, 1939, the ICC made certain changes and additions to the
Motor Carrier Safety Regulations, including elimination of the
exceptions granted by the original rules for those drivers unable to
read and speak English. As stated in that notice, ``[t]he intent of the
Commission to require such ability of all drivers in this service has
been unmistakable since 1937, and the intervening period of more than
two years is regarded as sufficient to justify the removal of the
exception'' (14 M.C.C. 669, at 675). As explained above, while the ICC
regulations on ELP have been recodified, the intent of Congress to
retain and enforce them is clear.
In accordance with 49 CFR 391.11(a), a person shall not drive a
commercial motor vehicle, as defined in section 390.5T, in interstate
commerce unless the individual meets the driver qualification
requirements in part 391. Under section 391.11(b)(2), the Secretary has
determined that one such qualification requirement is that a person
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. Pursuant to the regulation,
a driver that cannot do so is therefore not qualified to operate a CMV
in interstate commerce. In addition, each State or other entity
receiving Federal funds through FMCSA's Motor Carrier Safety Assistance
Program, which is currently all States plus DC and all U.S.
territories, must adopt and maintain compatible laws, regulations,
standards, and orders concerning CMV safety. Generally, the compatible
State requirements include applicability of the rules to CMVs operating
in intrastate commerce. See Subpart C to 49 CFR part 350. This includes
the requirements in section 391.11.
Effective April 1, 2005, CVSA amended its North American Standard
Out-of-Service Criteria to include violations of section 391.11(b)(2).
CVSA is a non-profit organization, comprising Federal, State,
provincial, territorial and local safety officials and industry
representatives, that develops inspection, training, and enforcement
standards for commercial motor vehicles. The North American Standard
Out-of-Service Criteria is a reference guide that sets forth
enforcement tolerances developed and maintained by CVSA to assist State
inspectors in deciding whether to allow a commercial motor vehicle or
driver, found in violation of law, to continue in commerce. It provides
a detailed list of violations that the CVSA membership has agreed are
sufficiently hazardous to justify restricting further operation by a
driver or a commercial motor vehicle and placing them out of service.
The list was developed over a period of more than 40 years by Federal,
State and Provincial safety professionals, with input from the motor
carrier industry, vehicle and equipment manufacturers, researchers, and
other interested parties. The North American Standard Out-of-Service
Criteria is non-binding guidance to assist Federal and State personnel
to determine whether to place a vehicle or driver out-of-
service.<SUP>2 3</SUP> All States participating in the Motor Carrier
Safety Assistance Program consider the North American Standard Out-of-
Service Criteria during roadside inspections. In accordance with the
definition of out-of-service order under section 390.5T, violations may
be considered an OOS condition if included within the North American
Standard Out-of-Service Criteria.
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\2\ See 68 FR 43893, 43895 (July 24, 2003). The North American
Standard Out-of-Service Criteria represent enforcement tolerances,
and should not be construed to be regulations. As FMCSA noted in a
July 24, 2003 notice withdrawing an ANPRM related to the North
American Standard Out-of-Service Criteria, the Agency decided not to
adopt the Criteria, either through codification of the text or
through incorporation-by-reference, into the FMCSR. FMCSA continues
to believe that the collaborative process currently used for
amending or revising the North American Standard Out-of-Service
Criteria has successfully achieved a level of uniformity amongst
enforcement agencies throughout North America and that it is in the
public interest that these enforcement tolerances continue to be
managed through the partnership between the Federal, State, and
Provincial governments from the United States, Canada, and Mexico,
with participation by the industry, motor vehicle and equipment
manufacturers, researchers and other interested parties. See id. at
43894-43895.
\3\ In 1999, the U.S. Court of Appeals for the D.C. Circuit
considered the issue of whether the North American Standard Out-of-
Service Criteria are binding regulations because they are referenced
in 49 CFR 390.5 and found the answer to be no because ``no federal
statute or regulation either requires or authorizes federal or state
agents to use the [North American Standard Out-of-Service Criteria]
in deciding to place a vehicle out of service,'' and ``the inclusion
of the [North American Standard Out-of-Service Criteria] in Sec.
390.5 does not transform the [North American Standard Out-of-Service
Criteria] into substantive rules.'' National Tank Truck Carriers,
Inc. v. Federal Highway Administration of the U.S. Department of
Transportation, 170 F.3d 203 at (Mar. 26, 1999).
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On October 1, 2014, FMCSA published regulatory guidance titled,
``Driver Qualifications; Regulatory Guidance Concerning the
Applicability of Language Requirement to Drivers Who Do Not Meet the
Hearing Standard'' (79 FR 59139).\4\ This guidance explained that the
English language requirement should not be construed to prohibit
operation of a CMV by hearing-impaired drivers who can read and write
in the English language but do not speak, for whatever reason, and were
granted exemptions \5\ from section 391.41(b)(11) by FMCSA.
Specifically, the guidance advises that a driver who is granted an
exemption from section 391.41(b)(11) is not considered unqualified
under the ELP requirement in section 391.11(b)(2) if the driver is
capable of reading and writing in the English language. In that
circumstance, the hearing-impaired driver satisfies the English
language requirement. This guidance remains in effect.
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\4\ 79 FR 59139 (Oct. 1, 2014), available at <a href="https://www.federalregister.gov/documents/2014/10/01/2014-23435/driver-qualifications-regulatory-guidance-concerning-the-applicability-of-language-requirement-to">https://www.federalregister.gov/documents/2014/10/01/2014-23435/driver-qualifications-regulatory-guidance-concerning-the-applicability-of-language-requirement-to</a>.
\5\ FMCSA may grant an exemption from the safety regulations for
up to a five-year period if it finds ``such exemption would likely
achieve a level of safety that is equivalent to, or greater than,
the level that would be achieved absent such exemption.'' 49 U.S.C.
31136(e) and 31315. See also 49 CFR part 381.
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Effective April 1, 2015, CVSA removed section 391.11(b)(2) from its
North American Standard Out-of-Service Criteria. On June 15, 2016,
FMCSA issued a policy memorandum titled ``English Language Proficiency
Testing and Enforcement Policy (MC-ECE-2016-006)'' to provide guidance
to FMCSA personnel conducting safety investigations, audits, and
inspections of CMVs and drivers. The policy removed the requirement for
FMCSA personnel to place drivers OOS for ELP violations and changed the
Agency's standard for determining non-compliance with the ELP
requirements of section 391.11(b)(2). Under the 2016 policy, FMCSA
personnel were directed to cite drivers for violations of section
391.11(b)(2) but not to place them OOS, consistent with CVSA's change
to the

[[Page 51425]]

enforcement tolerances used by personnel conducting CMV inspections.
On April 28, 2025, the President issued Executive Order (E.O.)
14286, ``Enforcing Commonsense Rules of the Road for America's Truck
Drivers,'' \6\ which directed FMCSA to rescind the 2016 guidance
document and issue new enforcement guidance to FMCSA personnel,
outlining inspection procedures necessary to ensure compliance with the
requirements of section 391.11(b)(2). The E.O. directed FMCSA to take
all necessary and appropriate actions, consistent with applicable law,
to ensure that the North American Standard Out-of-Service Criteria are
revised such that a violation of the ELP requirement results in the
driver being placed OOS, including by working with the relevant
entities responsible for establishing the North American Standard Out-
of-Service Criteria.
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\6\ 90 FR 18759 (May 2, 2025), available at <a href="https://www.federalregister.gov/documents/2025/05/02/2025-07786/enforcing-commonsense-rules-of-the-road-for-americas-truck-drivers">https://www.federalregister.gov/documents/2025/05/02/2025-07786/enforcing-commonsense-rules-of-the-road-for-americas-truck-drivers</a>.
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On May 1, 2025, during a meeting of the CVSA Board of Directors
where FMCSA presented on the issue of ELP, CVSA voted to incorporate
violations of section 391.11(b)(2) into the North American Standard
Out-of-Service Criteria, effective June 25, 2025.\7\ On May 20, 2025,
FMCSA issued policy memorandum ``English Language Proficiency Under
Sec. 391.11(b)(2) (MC-SEE-2025-0001)'' \8\ (May 2025 policy memo) to
rescind the 2016 policy and provide guidance to FMCSA enforcement
personnel providing oversight of part 391 in conducting North American
Standard Driver and Vehicle Inspections who need to evaluate whether
drivers can satisfy the ELP qualification requirements in section
391.11(b)(2).\9\ The May 2025 policy memo also provides enforcement
guidance for discovered violations of section 391.11(b)(2). The updates
to the North American Standard Out-of-Service Criteria that became
effective on June 25, 2025 established violations of section
391.11(b)(2) as an OOS violation and incorporated the inspection
procedures from the May 2025 policy memo, which was applicable only to
Federal personnel.\10\
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\7\ ``CVSA to Add English Language Proficiency to Its Out-of-
Service Criteria,'' CVSA (May 1, 2025), available at <a href="https://cvsa.org/news/elp-oosc/">https://cvsa.org/news/elp-oosc/</a>.
\8\ Available at <a href="https://www.fmcsa.dot.gov/newsroom/updated-internal-agency-enforcement-policy-english-language-proficiency">https://www.fmcsa.dot.gov/newsroom/updated-internal-agency-enforcement-policy-english-language-proficiency</a>. On
May 22, 2025, FMCSA published related guidance for motor carriers on
what they should do to assess a CMV driver's ELP during the driver
qualification process. See FMCSA-DQ-391.11-FAQ001 (2025-05-22),
available at <a href="https://www.fmcsa.dot.gov/regulations/what-should-motor-carrier-do-assess-cmv-drivers-english-language-proficiency-elp-during">https://www.fmcsa.dot.gov/regulations/what-should-motor-carrier-do-assess-cmv-drivers-english-language-proficiency-elp-during</a>.
\9\ The May 2025 policy memo advises FMCSA personnel to initiate
all roadside inspections in English. If the inspector's initial
contact with the driver indicates that the driver may not understand
the inspector's instructions, the inspector should conduct an ELP
assessment consisting of a driver interview (to determine a driver's
ability to respond sufficiently to official inquiries) and, if the
driver passes the interview step, a highway traffic sign recognition
assessment (to determine a driver's ability to understand
sufficiently United States highway traffic signs, including
electronic-display changeable message signs in the English
language).
\10\ ``The CVSA North American Standard Out-of-Service Criteria
has been amended to state that drivers who cannot satisfy the
English language proficiency requirements of Sec. 391.11(b)(2), as
per the Federal Motor Carrier Safety Administration's (FMCSA)
Enforcement Guidance Memo MC-SEE-2025-0001, will be declared out of
service.'' CVSA, Non-Compliance with English Language Proficiency
Regulation Takes Effect as an Out-of-Service Driver Violation (June
25, 2025), available at <a href="https://cvsa.org/news/elp-oosc-06252025/">https://cvsa.org/news/elp-oosc-06252025/</a>.
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On May 22, 2025 and May 28, 2025, FMCSA trained approximately 650
staff members--including inspectors, auditors, investigators, and
headquarters personnel--on internal enforcement policy MC-SEE-2025-0001
via webinar. The training included information on the policy's
background, the key provisions, procedures for effectuating the policy,
and the updated SafeSpect violation codes. On June 25, 2025, FMCSA
provided a similar webinar to state MCSAP personnel.
On October 25, 2025, CVSA submitted a petition for rulemaking
requesting that FMCSA amend the FMCSR by requiring that noncompliance
with the ELP requirements in section 391.11(b)(2) result in a driver
being placed OOS.\11\ CVSA stated that noncompliance with ELP
requirements in section 391.11(b)(2) has already been added to the
North American Standard Out-of-Service Criteria, and updating the FMCSR
would be consistent with that action and the objectives of E.O. 14286.
CVSA provided some recommended revisions to sections 390.5T and
391.11(b)(2) to accomplish this. The Agency grants that petition and
proposes to incorporate the recommended changes, as discussed below.
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\11\ A copy of CVSA's petition is available in the docket for
this rulemaking.
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On April 16, 2026, FMCSA issued a policy memorandum, titled
``English Language Proficiency Under Sec. 391.11(b)(2) (MC-SEE-2026-
0002)'' \12\ (April 2026 policy memo), to update the guidance in the
May 2025 policy memo. The April 2026 policy memo clarified that FMCSA
enforcement personnel conducting inspections within a U.S.-Mexico
border commercial zone must determine the scope of the driver's current
trip before determining whether to issue an OOS order when citing a
violation of 49 CFR 391.11(b)(2). If the driver's current trip (as
evidenced by bills of lading, dispatch records, equipment interchange
receipts, driver statements, or other related shipping documents)
involves transportation in the United States that would take the driver
outside of the U.S.-Mexico border commercial zones, the driver shall be
placed OOS for a violation of section 391.11(b)(2). If the driver's
current trip does not involve transportation in the United States that
would take the driver outside of the U.S.-Mexico border commercial
zones (even if the cargo itself is ultimately destined outside of a
border commercial zone via a different driver), the driver shall not be
placed OOS for a violation of section 391.11(b)(2). As with the May
2025 policy memo, the April 2026 policy memo applies to FMCSA
enforcement personnel only.
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\12\ Available at <a href="https://www.fmcsa.dot.gov/regulations/enforcement/fmcsa-elp-guidance-roadside-policy-mc-see-2026-0002">https://www.fmcsa.dot.gov/regulations/enforcement/fmcsa-elp-guidance-roadside-policy-mc-see-2026-0002</a>.
---------------------------------------------------------------------------

On April 16, 2026, FMCSA also published a guidance document titled,
``English Language Proficiency Roadside Enforcement Policy FAQs,'' \13\
to address four questions regarding the April 2026 policy memo.\14\ The
FAQs provided clarity on the exception for drivers operating CMVs in
the border commercial zones along the U.S.-Mexico border, on how to
cite violations under the two-step test, on whether the violation codes
were hardcoded in SafeSpect to ensure the correct OOS designation is
applied to violation codes, and on language regarding initiating an
action to disqualify the driver from operating CMVs in interstate
commerce.
---------------------------------------------------------------------------

\13\ Available at <a href="https://www.fmcsa.dot.gov/regulations/english-language-proficiency-roadside-enforcement-policy-faqs-0">https://www.fmcsa.dot.gov/regulations/english-language-proficiency-roadside-enforcement-policy-faqs-0</a>.
\14\ The guidance document revised a previous guidance document
(FMCSA-DQ-391.11-ELP-Policy-CVSA-FAQs (2026-02-03)) that answered
the same four questions based on the May 2025 policy memo.
---------------------------------------------------------------------------

On April 19, 2026, CVSA's board of directors voted to revise the
North American Standard Out-of-Service Criteria to update the entry for
violations of section 391.11(b)(2) by replacing the reference to the
May 2025 policy memo with a reference to ``current FMCSA enforcement
guidance.'' \15\ This change ensures that the latest FMCSA enforcement
guidance for violations of section 391.11(b)(2), which is now the April
2026 memo, is incorporated into the North American Standard Out-of-
Service Criteria. This incorporation by CVSA makes FMCSA's April 2026
policy applicable to State

[[Page 51426]]

inspectors as well and thereby provides uniform enforcement by Federal
and State authorities.
---------------------------------------------------------------------------

\15\ See April 20, 2026 letter to CVSA members available in the
docket for this rulemaking.
---------------------------------------------------------------------------

VI. Discussion of Proposed Rulemaking

FMCSA proposes to revise the FMCSR to reflect the current practice
of placing drivers OOS for violations of the ELP requirements in
section 391.11(b)(2), except when the driver's current trip would not
involve transportation in the United States that would take the driver
outside of the U.S.-Mexico border commercial zones. As discussed in the
background section above, the North American Standard Out-of-Service
Criteria currently require drivers in violation of section 391.11(b)(2)
to be placed out of service.
CVSA, through its petition for rulemaking, requested revisions to
sections 390.5T and 391.11(b)(2) to reflect that noncompliance with ELP
requirements will result in a driver being placed OOS. CVSA requested
that section 391.11(b)(2) be added to the list of regulatory
requirements listed in the definition for out-of-service order in
section 390.5T. Additionally, CVSA requested a new paragraph (c) be
added to section 391.11 stating that a driver in violation of paragraph
(b)(2) must be placed out of service immediately. FMCSA agrees with
CVSA that the changes recommended in their petition are consistent with
CVSA's enforcement tolerances in the North American Out-of-Service
Criteria, FMCSA's updated enforcement policy in the April 2026 policy
memo, and E.O. 14286.
The Agency is proposing to add the language recommended by CVSA in
its petition, with two slight differences. First, FMCSA also proposes
to update the definition of out-of-service order in the suspended
section 390.5 to ensure consistency with section 390.5T.\16\ This
ensures that the changes made to the definition in section 390.5T would
remain in effect if the suspension of section 390.5 is lifted in the
future. In addition, the Agency proposes additional language at the end
of CVSA's recommended language in section 391.11(c).
---------------------------------------------------------------------------

\16\ On January 17, 2017, FMCSA suspended certain regulations
relating to the electronic Unified Registration System and delayed
their effective date indefinitely (82 FR 5292). The suspended
regulations were replaced by temporary provisions that contain the
requirements in place on January 13, 2017. Section 390.5 was one of
the sections suspended and section 390.5T, which is currently in
effect, was one of the replacement sections added (82 FR 5299).
---------------------------------------------------------------------------

The addition to section 391.11(c) would incorporate the limited
exception from being placed OOS for ELP for drivers whose current trip
would not involve transportation in the United States outside of the
U.S.-Mexico border commercial zones. Specifically, the exception for
U.S.-Mexico border commercial zones in the North American Out-of-
Service Criteria, provides that enforcement personnel should cite
drivers whose current trip would not involve transportation in the
United States outside of the U.S.-Mexico border commercial zones for
ELP violations during inspections in such zones but should not take
follow-on actions of placing the driver OOS or initiating an action to
disqualify the driver. This exception would not apply when there is
evidence that the driver intends to operate, or has been operating, a
CMV in the United States outside the border commercial zones. This
would close a safety loophole to ensure uniform enforcement, regardless
of where the inspection takes place. Non-compliant drivers who would
not be placed OOS under this exception (because they did not operate or
intend to operate in the United States outside of a border commercial
zone) would still be cited for violating the ELP requirements in
section 391.11(b)(2). FMCSA notes that under this proposed rule, a
driver not placed OOS for an ELP violation under the exception could
still be placed OOS if he or she commits a violation, other than under
section 391.11(b)(2), that warrants being placed OOS.
Upon publication of a final rule, FMCSA will hold training for
FMCSA and State partner enforcement personnel similar to the ones held
in May and June 2025. This training will cover the limited exception
from the paragraph above, as well as any other provisions in a final
rule that may differ from prior enforcement practices.
The proposed revisions to sections 390.5, 390.5T, and 391.11 would
ensure that the FMCSR are consistent with the enforcement tolerances in
the North American Standard Out-of-Service Criteria. In addition, the
MCSAP program requires States to adopt State laws or regulations
compatible with the FMCSR as a condition of MCSAP grant eligibility. By
codifying the OOS condition in the FMCSR, States will be required to
adopt a compatible requirement into their State law regardless of any
future revisions to the North American Standard Out-of-Service
Criteria. This would ensure uniform enforcement of ELP violations
beyond State use of the North American Standard Out-of-Service
Criteria. This rulemaking would merely codify enforcement tolerances
consistent with an April 19, 2026 revision to the North American
Standard Out-of-Service Criteria, which narrows the previous exception
for placing drivers OOS for ELP violations in U.S.-Mexico border
commercial zones.

VII. International Impacts

Motor carriers and drivers are subject to the laws and regulations
of the countries where they operate, unless an international agreement
states otherwise. Drivers and carriers should be aware of the
regulatory differences between nations. Canada- and Mexico-domiciled
drivers operating CMVs in the United States have been subject to the
ELP rules since they were implemented in the 1930s, regardless of
whether those drivers' native language is not English. However, CMV
drivers operating in the commercial zones along the U.S.-Mexico
international border are not currently subject to being placed OOS for
violating ELP requirements when their current trip would not involve
transportation in the United States that would take the driver outside
of the U.S.-Mexico border commercial zones. Those drivers would not be
impacted by this rulemaking.
The proposed rule is consistent with established international
agreements, including the United States-Mexico-Canada Agreement (USMCA)
and the predecessor North American Free Trade Agreement (NAFTA) as well
as agreements providing for the reciprocal recognition of commercial
driver's licenses between the United States, Canada, and Mexico. The
ELP requirement, like other operating qualification standards, applies
equally to all commercial vehicle drivers operating in the United
States regardless of nationality. Non-discriminatory, safety-based
operating standards, like ELP requirements, and the enforcement
tolerances set forth in this proposed rule are permissible under the
USMCA framework.

VIII. Section-By-Section Analysis

This section-by-section analysis describes the proposed changes in
numerical order.

Section 390.5 and 390.5T Definitions

FMCSA proposes to revise the definition of out-of-service order in
sections 390.5 and 390.5T to include section 391.11(b)(2).

Section 391.11 General qualification of drivers

FMCSA proposes to add a new paragraph (c)(1), which would state
that drivers violating paragraph (b)(2) of this section would be placed
OOS. FMCSA would also add a new paragraph (c)(2), which would state
that drivers would not be placed OOS if operating in the

[[Page 51427]]

commercial zones, as designated in 49 CFR part 372, subpart B, along
the U.S.-Mexico international border, unless there is evidence that the
person has operated or intends to operate a CMV in the United States
beyond the boundaries of the commercial zones.

IX. Regulatory Analyses

A. E.O. 12866 (Regulatory Planning and Review) and DOT Policies and
Procedures for Rulemakings

FMCSA has considered the impact of this proposed rule under E.O.
12866 (58 FR 51735, Oct. 4, 1993) and DOT Rulemaking Procedures (49 CFR
part 5, subpart B). The Office of Information and Regulatory Affairs
within the Office of Management and Budget (OMB) determined that this
proposed rule is a significant regulatory action under section 3(f) of
E.O. 12866 and has reviewed it under that E.O.
The proposed rulemaking does not create new requirements or
obligations for regulated entities but would codify and align with
current enforcement tolerances in the North American Standard Out-of-
Service Criteria and E.O. 14286. The rulemaking is necessary to ensure
uniform enforcement by aligning the FMCSR with the current enforcement
tolerances in the North American Standard Out-of-Service Criteria. This
proposed rule would incorporate the limited exception from OOS
violations for drivers whose current trip would not involve
transportation in the United States outside of the U.S.-Mexico border
commercial zones and would amount to a slight clarification and
narrowing of the previous exception in the North American Standard Out-
of-Service Criteria, which had incorporated FMCSA's May 2025 internal
enforcement policy, for inspections performed of drivers ``operating
[CMVs] in the border commercial zones along the U.S.-Mexico border.''
The May 2025 policy memo, which was incorporated by CVSA and effective
on June 25, 2025, stated that enforcement personnel should cite drivers
for ELP violations during inspections in such zones but should not take
follow-on actions of placing the driver OOS or initiating an action to
disqualify the driver. The proposed rule clarifies that this exception
should not be applied where there is evidence that the driver intends
to operate, or has been operating, a CMV in interstate commerce outside
the U.S.-Mexico border commercial zones as part of their current trip.
This would ensure uniform enforcement, regardless of where the
inspection takes place.
Under the regulatory baseline, the enforcement tolerances in the
North American Standard Out-of-Service Criteria, effective June 25,
2025, which incorporated the May 2025 policy memo, would remain in
effect. The Agency has had requirements for ELP dating back to 1936.
This proposed rule would not change the ELP requirements set forth in
section 391.11(b)(2). Further, the proposal would not impact existing
tools at the Agency's discretion regarding letters of disqualification
and civil penalty actions. These tools have been in place for over 40
years and would continue to be available to FMCSA if this proposed rule
is finalized. This regulatory analysis of the proposed rule does,
however, consider the cost of non-compliance with the existing ELP
requirements with regards to violations identified during roadside
inspections under certain circumstances. While the April 2026 memo and
the update to the North American Standard Out-of-Service Criteria have
already gone into effect, DOT has determined that it is appropriate to
consider the costs and benefits of this policy change since it is
roughly contemporaneous with this rulemaking.
Between January 2025 and June 24, 2025, 7,812 ELP violations were
issued across the United States, with 33 of those resulting in OOS
orders.\17\ Between June 25, 2025 and March 19, 2026, there were 60,399
ELP violations issued, with 19,045 of those resulting in OOS
orders.\18\ The change to CVSA's enforcement tolerances in the summer
of 2025 resulted in an increase in ELP violations and OOS orders. The
19,045 ELP violations that resulted in OOS orders all occurred outside
of border commercial zones, while the remaining 44,354 ELP violations
that occurred in border commercial zones did not result in OOS orders.
---------------------------------------------------------------------------

\17\ MCMIS/GOTHAM snapshot date as of Oct. 31, 2025.
\18\ MCMIS/GOTHAM snapshot date as of Mar. 20, 2026.
---------------------------------------------------------------------------

Though FMCSA believes the recent increase in ELP violations and OOS
orders tied to the 2025 change in enforcement tolerances would continue
under the baseline, the proposed rule would also clarify that OOS
orders should be issued for ELP violations issued within the U.S.-
Mexico border commercial zones if the driver's current trip involves
transportation in the United States outside of the border commercial
zones. Inspection documentation collected from June 25, 2025 through
March 19, 2026 did not definitively capture the number of ELP
violations that would fall into this category. It did capture the
origin and destination of the cargo and the operating authority of the
carrier for which the driver was working. This provides FMCSA with two
different proxies for whether the driver had left or intended to leave
the border commercial zone. For example, if cargo originated in Mexico
and is bound for a commercial zone, FMCSA assumed that the driver was
not planning to leave the commercial zone. In this case, under the
proposal, the driver would have received an ELP violation, but would
not have received an OOS order, which is the same result as under the
June 2025 enforcement tolerances. However, if the cargo originated in a
border commercial zone and was destined for a U.S. location outside the
commercial zones, FMCSA assumed that the driver was planning to leave
the commercial zones and would have received an OOS order under the
proposal. Analyzing all 41,563 violations that were issued in the
commercial zones between June 25, 2025 and March 19, 2026, FMCSA
estimated that 83.5 percent would have only received ELP violations,
and 16 percent would also have received an OOS order (in addition to
the underlying ELP violation). Approximately 0.5 percent of the
violations did not include either origin or destination information.
Extrapolating to an entire year, FMCSA estimates that there would be
approximately 56,575 ELP violations within the border commercial zones
and that approximately 9,052 (16 percent) would be issued as OOS
orders. FMCSA recognizes that origin and destination information from
the inspection documentation may be specific to the cargo, and not
necessarily the driver (e.g., where the driver's destination as
reflected on a dispatch order differs from the final destination of the
cargo as listed on a waybill), but nevertheless believes it to be a
reasonable estimate of the number of drivers who would be affected by
the proposed rule.\19\
---------------------------------------------------------------------------

\19\ FMCSA also considered a second approach to estimating the
number of affected drivers that analyzed the operating authority of
the motor carriers for which the driver who received the ELP
violation was working. Mexican-owned carriers that operate only
within the border commercial zones receive OP-2 operating authority.
Mexican-owned carriers that operate within and outside the
commercial zones receive OP-1 operating authority. All other motor
carriers, regardless of ownership, have operating authority that
allows them to operate within or outside the commercial zones.
Isolating ELP violations attributed to OP-2 carriers yielded an
estimate of the percentage of drivers that were most likely to have
remained inside the zones, and would not have been placed OOS under
the proposal, that was nearly the same (15 percent) as the first
approach.

---------------------------------------------------------------------------

[[Page 51428]]

For purposes of this analysis, FMCSA estimates that approximately
9,000 drivers would receive ELP violations and also be placed OOS
annually within the border commercial zones. As the methodology
employed by FMCSA provides an indirect estimate of whether the driver
left, or intended to leave, the border commercial zones, FMCSA requests
comment on the validity of this methodology, specifically in relation
to whether it tends to under- or overestimate the number of drivers
that would have been placed OOS under the proposal, and whether other
methodologies would produce a more reliable estimate.
FMCSA evaluates the impact of this proposal as the difference
between receiving an ELP violation only and receiving both an ELP
violation and an OOS order, for both motor carriers and drivers.
Generally, repeated violations issued to a carrier can negatively
impact their Safety Measurement System score and lead to various
consequences. An OOS order has a more immediate effect in that the
carrier would need to find a replacement driver and incur any costs
related to the resulting delivery delay. Motor carriers are encouraged
to develop hiring practices and procedures to ensure their drivers are
properly qualified, and, as is the case with all driver qualifications,
are ultimately responsible for ensuring the driver is qualified to
operate a CMV prior to the next dispatch. FMCSA does not require that
motor carriers train their drivers in the English language, however,
motor carriers have the discretion to establish internal training
programs or rely on already established training materials. Some
companies charge carriers an hourly detention fee if the delivery
arrives outside the agreed upon window (e.g., $50 to $100 per hour),
while other companies charge a percentage of the shipment value (e.g.,
three percent).\20\ Multiple industry sources have cited FleetNet
America downtime cost estimates for a vehicle that range between $448
and $760 per day.<SUP>21 22</SUP> This is generally understood to
include lost revenue, fixed costs (e.g., vehicle insurance premiums),
and delay costs. It is not clear if it also includes the cost of
finding and dispatching a replacement driver. Locating and dispatching
an available replacement driver could require a few hours, or a few
days. FMCSA relies on the higher end of this estimate and rounds it to
$800 to ensure all costs are accounted for. Based on subject matter
expertise, FMCSA estimates that a motor carrier would, on average,
require two days to locate and dispatch the driver, and for the driver
to reach the vehicle and continue the trip. This cost also does not
consider potential spillover effects to the broader economy from late
shipments.
---------------------------------------------------------------------------

\20\ Tow4 Tech. The High Cost of Downtime and Missed Delivery
Windows in the Trucking Industry, available at <a href="https://www.tow4tech.com/post/the-high-cost-of-downtime-and-missed-delivery-windows-trucking-industry">https://www.tow4tech.com/post/the-high-cost-of-downtime-and-missed-delivery-windows-trucking-industry</a>.
\21\ Tow4 Tech. The High Cost of Downtime and Missed Delivery
Windows in the Trucking Industry, available at <a href="https://www.tow4tech.com/post/the-high-cost-of-downtime-and-missed-delivery-windows-trucking-industry">https://www.tow4tech.com/post/the-high-cost-of-downtime-and-missed-delivery-windows-trucking-industry</a>.
\22\ Millennials Maintenance. What a Semi Truck Breakdown Really
Costs a Fleet: The Invoice and Everything Else, available at:
<a href="https://millennialsmaintenance.com/blog/semi-truck-breakdown-cost-fleet">https://millennialsmaintenance.com/blog/semi-truck-breakdown-cost-fleet</a>.
---------------------------------------------------------------------------

For purposes of analysis, FMCSA assumes that 9,000 drivers would be
placed OOS annually within the border commercial zones at a cost of
$800 per day, and that it would take an average of two days to locate
and dispatch a replacement driver and get the freight to its final
destination. This results in an annual cost of $14.4 million (9,000 x
$800 per day x 2 days).
FMCSA requests comment on how long it takes on average for a
replacement driver to reach the vehicle and continue the trip, how long
the driver in violation would remain OOS and be unable to operate a
CMV, and the average cost of delay associated with driver OOS orders.
Are there other impacts that FMCSA should consider when evaluating the
difference between an ELP violation and an OOS order? Given the costs
associated with a driver being placed OOS, would motor carriers be less
likely to place unqualified drivers behind the wheel of a CMV?
FMCSA stresses that ELP has been a longstanding requirement for
driver qualification, and this proposal would not place new
requirements on motor carriers or drivers. FMCSA does not generally
estimate the costs of non-compliance in its regulatory impact analyses,
but in this instance, provides examples of the types of costs that
could be incurred under the proposal should a motor carrier choose to
employ unqualified drivers.
Further, this proposal would require that FMCSA and State partner
enforcement personnel working within the U.S.-Mexico border commercial
zones receive training on how to identify drivers that intend to
operate, or have been operating, a CMV in interstate commerce outside
the border commercial zones. FMCSA anticipates that this training would
be conducted via a 1-hour webinar, similar to the training undergone
for other updates to enforcement policy. There are approximately 100
Federal border inspectors and 1,900 State enforcement personnel that
would undergo this training. The fully-loaded hourly rate for Federal
Border Inspectors is $84.84 ($39.15 base hourly rate \23\ + ($39.15 x
47 percent fringe benefits rate \24\) + ($39.15 x 69.7 percent overhead
rate \25\). The fully-loaded hourly rate for State enforcement
personnel is $60.68 ($30.32 median hourly rate \26\) + ($30.32 x 62
percent fringe benefits rate \27\) + ($30.32 x 28 percent overhead rate
\28\). FMCSA anticipates that this training would occur in the first
year following the publication of the final rule, and in subsequent
years would be part of the existing training for inspectors. FMCSA
estimates that training costs for Federal border inspectors in the
first year of the analysis would total approximately $8,500 (100
Federal inspectors x 1 hour x $84.84) and that the training costs for
State inspectors would total approximately $115,300 (1,900 State
inspectors x 1 hour x $60.68).
---------------------------------------------------------------------------

\23\ Locality-adjusted hourly wage rate, weighted by GS grade of
FMCSA's border inspectors.
\24\ OMB, Object Class Analysis. Divided ``civilian personnel
benefits'' by ``Full time permanent'' for Department of
Transportation, page 19. Available at: <a href="https://www.whitehouse.gov/wp-content/uploads/2025/04/BUDGET-2026-OBJCLASS-1.pdf">https://www.whitehouse.gov/wp-content/uploads/2025/04/BUDGET-2026-OBJCLASS-1.pdf</a> (Accessed Apr.
7, 2026).
\25\ Volpe Project costs. <a href="https://www.volpe.dot.gov/work-with-us/volpe-project-costs">https://www.volpe.dot.gov/work-with-us/volpe-project-costs</a> (Accessed Apr. 7, 2026).
\26\ Bureau of Labor Statistics, <a href="https://www.bls.gov/oes/2023/may/naics4_999200.htm">https://www.bls.gov/oes/2023/may/naics4_999200.htm</a>.
\27\ Bureau of Labor Statistics, Employer Costs for Employee
Compensation, Table 3. Available at <a href="https://www.bls.gov/news.release/ecec.t03.htm">https://www.bls.gov/news.release/ecec.t03.htm</a>.
\28\ Average overhead as provided by States within eCVSP grant
applications.
---------------------------------------------------------------------------

FMCSA requests comment on the methodology to determine the number
of OOS orders that would be issued under the proposal, and the impact
to motor carriers, the Federal government, and State partners that
would result from this proposal. The Agency also requests comment on
the aggregate impact to the supply chain (e.g., changes in shipping
costs, delayed cargo delivery), including impacts to shippers, from an
increase in driver OOS orders in the border commercial zones.
The primary benefit of this proposed rulemaking would be improved
safety outcomes resulting from more uniform and consistent enforcement
of driver qualification standards. Aligning the FMCSR with the current
enforcement tolerances in the North American Standard Out-of-Service
Criteria would help ensure that drivers operating CMVs are in
compliance with driver qualification standards related to ELP.
Specifically, codifying these requirements would yield compounding
benefits for highway safety. It would

[[Page 51429]]

close an existing safety loophole, guaranteeing that uniform
enforcement is applied to unqualified drivers regardless of where the
roadside inspection takes place and regardless of possible future
amendment of the enforcement tolerances set forth in the North American
Standard Out-of-Service Criteria. The rulemaking would directly protect
the safe operation of CMVs by ensuring that drivers who fail to meet
minimum qualification requirements are immediately placed out of
service. Consistent ELP enforcement would ensure drivers possess the
vital ability to read and understand English-language highway traffic
signs and signals. The foundational importance of this ability for
adequate compliance with safety regulations has been recognized by the
government since 1937.
FMCSA also considered an alternative to this regulatory action;
reverting to the policy in effect on June 15, 2016. Effective on that
date, FMCSA issued a policy in line with CVSA's removal of the ELP
requirements under section 391.11(b)(2) from its North American
Standard Out-of-Service Criteria. However, reverting to the previous
policy framework would still result in a disconnect between the
applicable enforcement tolerances and the FMCSRs as well as a lack of
uniform enforcement, and would not take steps to close the safety
loophole identified in this proposed rule. As such, the Agency did not
quantify the costs and benefits associated with this alternative.

B. E.O. 14192 (Unleashing Prosperity Through Deregulation)

E.O. 14192, Unleashing Prosperity Through Deregulation, issued on
January 31, 2025 (90 FR 9065), requires that, for every new regulation
issued by an agency, at least 10 prior regulations be identified for
elimination, and that the cost of planned regulations be prudently
managed and controlled through a budgeting process. This proposed rule
is expected to have total costs greater than zero, and, if finalized,
would therefore qualify as an E.O. 14192 regulatory action.

C. Advance Notice of Proposed Rulemaking

Under 49 U.S.C. 31136(g), FMCSA is required to publish an advance
notice of proposed rulemaking (ANPRM) or proceed with a negotiated
rulemaking, if a proposed safety rule ``under this part'' \29\ is
likely to lead to the promulgation of a major rule.\30\ As this
proposed rule is not likely to result in the promulgation of a major
rule, the Agency is not required to issue an ANPRM or to proceed with a
negotiated rulemaking.
---------------------------------------------------------------------------

\29\ Part B of Subtitle VI of Title 49, United States Code,
i.e., 49 U.S.C. chapters 311-317.
\30\ A major rule means any rule that OMB finds has resulted in
or is likely to result in (a) an annual effect on the economy of
$100 million or more; (b) a major increase in costs or prices for
consumers, individual industries, geographic regions, Federal,
State, or local government agencies; or (c) significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export
markets. See 49 CFR 389.3; see also 5 U.S.C. 804(2).
---------------------------------------------------------------------------

D. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA, 5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996,\31\ requires Federal agencies to consider the effects of the
regulatory action on small business and other small entities and to
minimize any significant economic impact. The term small entities
comprises small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000 (5
U.S.C. 601(6)). Accordingly, DOT policy requires an analysis of the
impact of all regulations on small entities, and mandates that agencies
strive to lessen any adverse effects on these businesses.
---------------------------------------------------------------------------

\31\ Public Law 104-121, 110 Stat. 857, (Mar. 29, 1996).
---------------------------------------------------------------------------

When an Agency issues a proposed rule, the RFA requires the Agency
to ``prepare an initial regulatory flexibility analysis'' that will
describe the impact of the proposed rule on small entities (5 U.S.C.
604(a)). Section 605 of the RFA allows an agency to certify a rule,
instead of preparing an analysis, if the rule is not expected to have a
significant impact on a substantial number of small entities.
FMCSA has not determined whether this proposed rule would have a
significant economic impact on a substantial number of small entities.
Therefore, FMCSA is publishing this Initial Regulatory Flexibility
Analysis (IRFA) to aid the public in commenting on the potential small
business impacts of the proposals in this NPRM. The Agency invites all
interested parties to submit data and information regarding the
potential economic impact that would result from adoption of the
proposals in this NPRM. FMCSA will consider all comments received in
the public comment process when making a determination or when
completing a Final Regulatory Flexibility Assessment.
An IRFA must contain the following:
(1) a description of the reasons why the action by the agency is
being considered;
FMCSA proposes to codify the ELP driver qualification requirement
as an OOS violation. The rulemaking would ensure uniform enforcement by
aligning the FMCSR with the current enforcement tolerances in the North
American Standard Out-of-Service Criteria. The rulemaking responds to a
petition from CVSA.
(2) a succinct statement of the objective of, and legal basis for,
the proposed rule;
FMCSA proposes to update the FMCSR to reflect that, under current
enforcement tolerances, a violation of 49 CFR 391.11(b)(2) is an OOS
violation. This NPRM is consistent with the concurrent authorities of
the Motor Carrier Act of 1935 (49 U.S.C. 31502), as amended, and the
Motor Carrier Safety Act of 1984 (49 U.S.C. 31131, et seq.), as
amended. Section 204 of the Motor Carrier Act of 1935 provides that it
shall be the duty of the ICC (now the Secretary of Transportation,
after the broad delegation of jurisdiction to the Secretary under the
ICC Termination Act of 1995) \32\ to regulate common and contract
carriers by motor vehicle as provided in that act, and that ``to that
end the Commission may establish reasonable requirements with respect
to . . . qualifications and maximum hours of service of employees, and
safety of operation and equipment.'' Motor Carrier Act, section
204(a)(1)-(2). Section 204 further provides for the establishment of
similar regulations with respect to private carriers of property by
motor vehicle, if need therefore is found. Motor Carrier Act, section
204(a)(3). The Department of Transportation Act (Pub. L. 89-670, 80
Stat. 931, Oct. 15, 1966) transferred the ICC's safety authority and
regulations to DOT (Sec. 6(e)(6)(C)), where those functions were
assigned to FHWA, and now to FMCSA. See 49 U.S.C. 113(f). Most of the
Motor Carrier Act of 1935 has been repealed, but the previous safety
provisions have been retained in 49 U.S.C. 31502(b).
---------------------------------------------------------------------------

\32\ Public Law 104-88, 109 Stat. 803 (Dec. 29, 1995).
---------------------------------------------------------------------------

(3) a description of and, where feasible, an estimate of the number
of small entities to which the proposed rule will apply;
This proposed rule would not change requirements for small
entities. Nor would it change the cost of non-compliance with the
existing ELP

[[Page 51430]]

requirements because the proposed rule merely codifies existing FMCSA
guidance and CVSA's North American Standard Out-of-Service Criteria.
However, under the analytical framework explained above, FMCSA is
considering the effects of the revisions to FMCSA guidance and the
North American Standard Out-of-Service Criteria that are roughly
contemporaneous with this rulemaking. Under that methodology, FMCSA
anticipates that approximately 9,000 drivers could be placed OOS
annually as a result of the changes in the proposed rule. Assuming each
driver was employed by a distinct motor carrier, a maximum of 9,000
motor carriers could see an increase in the cost of non-compliance
related to ELP requirements. FMCSA anticipates that all impacted
entities would operate in and around the U.S.-Mexico border commercial
zones. FMCSA requests comment on the number of these motor carriers
that would be considered small.
(4) a description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities which will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record;
There are no reporting, recordkeeping, or other compliance
requirements in this proposed rulemaking.
(5) an identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule; and a description of any significant alternatives to the
proposed rule which accomplish the stated objectives of applicable
statutes and which minimize any significant economic impact of the
proposed rule on small entities.
FMCSA is not aware of any relevant Federal rules that may
duplicate, overlap, or conflict with the proposed rule. This proposed
rule would align the FMCSR with the current enforcement tolerances in
the North American Standard Out-of-Service Criteria. As a practical
matter, there are no alternatives that would also allow for such an
alignment.

E. Assistance for Small Entities

In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857),
FMCSA wants to assist small entities in understanding this rulemaking
so they can better evaluate its effects on themselves and participate
in the rulemaking initiative. If the rulemaking would affect your small
business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
consult the person listed under FOR FURTHER INFORMATION CONTACT.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business Administration's Small Business and
Agriculture Regulatory Enforcement Ombudsman (Office of the National
Ombudsman, see <a href="https://www.sba.gov/about-sba/oversight-advocacy/office-national-ombudsman">https://www.sba.gov/about-sba/oversight-advocacy/office-national-ombudsman</a>), and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-
734-3247). DOT has a policy regarding the rights of small entities to
regulatory enforcement fairness and an explicit policy against
retaliation for exercising these rights.

F. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (UMRA, 2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. The Act addresses actions that may result in the
expenditure by a State, local, or Tribal government, in the aggregate,
or by the private sector of $206 million (which is the value equivalent
of $100 million in 1995, adjusted for inflation to 2024 levels) or more
in any one year. Though this rulemaking would not result in such an
expenditure, and the analytical requirements of UMRA do not apply as a
result, the Agency discusses the effects of this rulemaking elsewhere
in this preamble.

G. Paperwork Reduction Act

This proposed rule contains no new information collection
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).

H. E.O. 13132 (Federalism)

A rulemaking has implications for federalism under section 1(a) of
E.O. 13132 (64 FR 43255, Aug. 10, 1999), Federalism, if it has
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.''
FMCSA has determined that this rulemaking would not have
substantial direct costs on or for States, nor would it limit the
policymaking discretion of States. Nothing in this document preempts
any State law or regulation. Therefore, this rulemaking does not have
sufficient federalism implications to warrant the preparation of a
Federalism Impact Statement.

I. Privacy

The Consolidated Appropriations Act, 2005,\33\ requires the Agency
to assess the privacy impact of a regulation that will affect the
privacy of individuals. This NPRM would not require the collection of
personally identifiable information.
---------------------------------------------------------------------------

\33\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5
U.S.C. 552a (Dec. 4, 2014).
---------------------------------------------------------------------------

The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
and any non-Federal agency that receives records contained in a system
of records from a Federal agency for use in a matching program.
The E-Government Act of 2002,\34\ requires Federal agencies to
conduct a Privacy Impact Analysis (PIA) for new or substantially
changed technology that collects, maintains, or disseminates
information in an identifiable form. No new or substantially changed
technology would collect, maintain, or disseminate information as a
result of this rulemaking. Accordingly, FMCSA has not conducted a PIA.
---------------------------------------------------------------------------

\34\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec.
17, 2002).
---------------------------------------------------------------------------

The Agency will complete a Privacy Threshold Assessment (PTA) to
evaluate the risks and effects the proposed rulemaking might have on
collecting, storing, and sharing personally identifiable information.
The PTA will be submitted to FMCSA's Privacy Officer for review and
preliminary adjudication and to DOT's Privacy Officer for review and
final adjudication.

J. E.O. 13175 (Indian Tribal Governments)

This rulemaking does not have Tribal implications under E.O. 13175
(65 FR 67249, Nov. 9, 2000), Consultation and Coordination with Indian
Tribal Governments, because it does not have a substantial direct
effect on one or more Indian Tribes, on the relationship between the
Federal Government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes.

K. National Environmental Policy Act of 1969

FMCSA analyzed this proposed rule pursuant to the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
determined this action is

[[Page 51431]]

categorically excluded from further analysis and documentation in an
environmental assessment or environmental impact statement under DOT
Order 5610.1D,\35\ Subpart B, paragraph (e)(6)(s). The categorical
exclusion (CE) in paragraph (6)(s) covers regulations regarding
commercial driver's license disqualifications. The proposed
requirements in this rulemaking are covered by this CE.
---------------------------------------------------------------------------

\35\ Available at <a href="https://www.transportation.gov/mission/dots-procedures-considering-environmental-impacts">https://www.transportation.gov/mission/dots-procedures-considering-environmental-impacts</a>.
---------------------------------------------------------------------------

L. Rulemaking Summary

As required by 5 U.S.C. 553(b)(4), a summary of this rulemaking may
be found at <a href="http://regulations.gov">regulations.gov</a>, under the docket number.

List of Subjects

49 CFR Part 390

Highway safety, Intermodal transportation, Motor carriers, Motor
vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 391

Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor
carriers, Reporting and recordkeeping requirements, Safety,
Transportation.

Accordingly, FMCSA proposes to amend 49 CFR chapter III, parts 390
and 391 as follows:

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
1. The authority citation for part 390 continues to read as follows:

Authority: 49 U.S.C. 113, 504, 508, 31132, 31133, 31134, 31136,
31137, 31144, 31149, 31151, 31502; sec. 114, Pub. L. 103-311, 108
Stat. 1673, 1677; secs. 212 and 217, Pub. L. 106-159, 113 Stat.
1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as added and
transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L.
109-59, 119 Stat. 1144, 1726, 1743, 1744), 113 Stat. 1748, 1773;
sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745; secs. 32101(d) and
32934, Pub. L. 112-141, 126 Stat. 405, 778, 830; sec. 2, Pub. L.
113-125, 128 Stat. 1388; secs. 5403, 5518, and 5524, Pub. L. 114-94,
129 Stat. 1312, 1548, 1558, 1560; sec. 2, Pub. L. 115-105, 131 Stat.
2263; and 49 CFR 1.81, 1.81a, 1.87.

0
2. Sec. 390.5 is amended by:
0
a. Lifting the suspension of the section;
0
b. Revising the definition of ``Out-of-service order''; and
0
c. Suspending the section.
The revision reads as follows:

Sec. 390.5 [Suspended]

* * * * *
Out-of-service order means a declaration by an authorized
enforcement officer of a Federal, State, Canadian, Mexican, or local
jurisdiction that a driver, a commercial motor vehicle, or a motor
carrier operation is out of service pursuant to 49 CFR 386.72,
391.11(b)(2), 392.5, 392.9a, 395.13, or 396.9, or compatible laws, or
the North American Standard Out-of-Service Criteria.
* * * * *
0
3. Sec. 390.5T is amended by revising the definition of ``Out-of-
service order'' to read as follows:

Sec. 390.5 T Definitions.

PART 391--QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE
(LCV) DRIVER INSTRUCTORS

0
4. The authority citation for part 391 continues to read as follows:

Authority: 49 U.S.C. 504, 508, 31133, 31136, 31149, 31502; sec.
4007(b), Pub. L. 102-240, 105 Stat. 1914, 2152; sec. 114, Pub. L.
103-311, 108 Stat. 1673, 1677; sec. 215, Pub. L. 106-159, 113 Stat.
1748, 1767; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; secs.
5403 and 5524, Pub. L. 114-94, 129 Stat. 1312, 1548, 1560; sec. 2,
Pub. L. 115-105, 131 Stat. 2263; and 49 CFR 1.87.

0
5. Sec. 391.11 is amended by adding new paragraph (c) to read as
follows:

Sec. 391.11 General qualifications of drivers.

* * * * *
(c)(1) Except as provided in paragraph (c)(2) of this section, any
person who is found to be in violation of the provisions of paragraph
(b)(2) of this section while operating a commercial motor vehicle in
interstate commerce shall be placed out-of-service immediately.
(2) Any person who is found to be in violation of the provisions of
paragraph (b)(2) of this section while operating a commercial motor
vehicle in interstate commerce in a commercial zone, designated in part
372, subpart B of this subchapter, along the U.S.-Mexico international
border will not be placed out-of-service for that violation, unless
there is evidence that the person has operated or intends to operate a
commercial motor vehicle in the United States beyond the boundaries of
the commercial zones.

Issued under authority delegated in 49 CFR 1.87.
Derek D. Barrs,
Administrator.
[FR Doc. 2026-16288 Filed 8-7-26; 8:45 am]
BILLING CODE 4910-EX-P

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