FMCSA Publishes Proposal to Codify Out-of-Service Criteria for ELP Violations

August 16, 2026

Since 1937, commercial drivers have been required to read and speak sufficient English to converse with the public, understand traffic signs, respond to inspectors, and complete reports. For a decade, however, violations of that requirement — 49 CFR 391.11(b)(2) — were cited but did not result in a driver being placed out of service (OOS). That changed in 2025: following Executive Order 14286, FMCSA rescinded its non-OOS guidance, and CVSA restored English language proficiency (ELP) violations to its North American Standard Out-of-Service Criteria, effective June 25, 2025. ELP violations have been treated as OOS events in the field ever since.

The Proposal

FMCSA has now issued a Notice of Proposed Rulemaking (NPRM) (Docket No. FMCSA-2026-0826) to write that enforcement practice directly into the federal regulations. The proposal would add a new paragraph to 49 CFR 391.11 requiring that a driver found in violation of the ELP requirement be placed OOS immediately, with a narrow exception for drivers whose current trip stays within U.S.-Mexico border commercial zones. Codifying the rule would also require MCSAP-funded states to adopt a compatible OOS standard, locking in uniform enforcement nationwide regardless of future CVSA guidance changes. Comments are due October 9, 2026.

Managing the Risk — Act Now, Not Later

The critical point for fleets: this exposure already exists today and does not wait on a final rule. FMCSA’s policy memorandum MC-SEE-2025-0001 (issued May 20, 2025, and updated by MC-SEE-2026-0002 in April 2026) is the operative enforcement directive currently guiding roadside inspections, and it has applied OOS consequences for ELP violations since June 2025. Fleets that treat this as a future compliance issue are misreading their present risk. Marketers should act now to:

  • Confirm ELP screening is a standing part of driver qualification file reviews and periodic recertification — not just a one-time hiring check.
  • Brief staff on MC-SEE-2025-0001 and its 2026 update, so they understand current roadside enforcement expectations, including the border-zone documentation standard.
  • Audit drivers who may be borderline on English proficiency and consider in-house evaluation or refresher resources before a roadside stop forces the issue.
  • Conduct routine checks to assess readiness for roadside inspections and identify potential gaps before enforcement actions occur.
  • Track this rulemaking.

Review the enforcement policy here. Review FMCSA’s proposal here.