Since the start of the year, commercial motor vehicle inspectors have placed 10,203 CDL drivers out-of-service for violating 49 Code of Federal Regulations 391.11(b)(2), the English language proficiency requirement. That's as of Thursday, December 18, according to data mined by Overdrive parent company Fusable's MC Advantage.
"We’ve already removed nearly 10,000 unqualified drivers and we don’t plan on taking our foot off the gas anytime soon!" Department of Transportation Secretary Sean Duffy said on December 11.
But have 10,000 drivers really stopped driving in the last 12 months? And if so, why haven't rates responded?
In April, President Donald Trump issued an executive order mandating English language proficiency for all truck drivers in the U.S. In May, Overdrive quoted freight rate expert Avery Vise of FTR Transportation Intelligence guessing ELP enforcement could boost rates as much as 15% if enforcement rates returned to early 2010s levels.
Enforcement rates haven't returned to those levels. In the early 2010s, it was common to see between 80,000 and 100,000 ELP violations every year. This year's on pace to hit just half that or slightly more, according to our RigDig Business Intelligence dashboard tracking violations nationwide.
Not all of those violations are accompanied by OOS orders, but 10,000 drivers leaving the market, if concentrated in long-haul spot freight operations, could certainly move the needle for independent owner-operators.
"A one percentage point change in capacity can have a huge impact on spot rates," DAT Principal Analyst Dean Croke said in May, noting that the spot market represents only about 15% of the total market. A small 2% reduction in overall carrier capacity, for instance, can represent a much bigger reduction in spot market capacity, often on the order of 13%-14%.
Reached again for comment in December, DAT Chief of Analytics Ken Adamo said ELP enforcement has "absolutely not" impacted rates.
"Rates are good right now but I think it’s 90% seasonality" moving rates around the holidays, said Adamo. "Volumes aren’t great either. We are still seeing sluggish consumer confidence, industrial production and manufacturing, and homebuilding."
In other words, Adamo's analysis lines up with what 23% of respondents told Overdrive in response to this survey quesiton, one of several posed about DOT's move to push some 194,000 non-domiciled CDL holders out.
Download the full survey results via this link.
The survey asked drivers to predict the rates impact of DOT's crackdown on CDL eligibility for non-citizens, and while 70% said rates would improve, 23% said rates wouldn't move, and that "bigger supply and demand factors move the market."
That survey also asked drivers to self-identify their citizenship status, and among drivers slated to lose their CDLs under DOT's new rule, fully 56% said rates wouldn't move, and that broader supply and demand factors would ultimately rule the day.
That particular DOT crackdown got stalled in court, though it seems to have stuck with 15 states contacted by Overdrive. We're not aware of any state in the U.S. still issuing new non-domiciled CDLs or renewing old ones. Further moves at the Department of Homeland Security also have restricted term length for non-citizens' work authorizations, and imposed fees on those documents, too.
All of these new measures take time to filter through to the freight market -- so it's probably too early to see real rates impact, but there's another confounding factor: Drivers placed OOS don't necessarily stop driving.
DOT in August reported it found drivers previously placed OOS for ELP violations got stopped in other states, and those states did not pick up on the prior OOS order, letting the drivers roll on after inspection.
The Commercial Vehicle Safety Alliance in September said that while inspectors in any state can easily see if a motor carrier has been placed OOS, the "same functionality does not exist to notify inspectors of previously documented OOS violations/conditions."
Instead, that "information would only be accessible if the inspector did a manual review of the driver or vehicle’s entire inspection history, which is not practical roadside."
Overdrive has heard directly from inspectors that drivers placed OOS aren't exactly monitored for the rest of the day to make sure they don't resume driving.
[Related: Why state police are letting drivers placed OOS for English violations go free]
Since CVSA's explanation in September, Chris Turner, Director of Leadership Development and Membership Services at CVSA, further clarified that the organization is doing "training outreach" to teach state inspectors about how to check on a driver's OOS status.
Andy Blair, a former Pennsylvania police officer who handled CMV inspections and a current CDL test administrator, said that although OOS drivers know they can't legally drive, the reality of the road is that they sometimes still do.
"When a driver gets placed OOS, here’s what happens -- the driver put OOS is not arrested, not detained, they are told you are out-of-service, you can't drive," said Blair. "But there's no babysitting involved." Inspectors "aren't just going to sit there and wait" until a replacement driver arrives on-site.
"They don't have the time of day," Blair said. "They need to spend their resources doing inspections, not babysitting."
During Roadcheck in Connecticut this May, Overdrive observed firsthand that drivers placed OOS aren't meticulously monitored. Yet if an eagle-eyed inspector does catch an OOS driver hauling, the driver can lose their CDL for six months or, in some states, face heavy fines.
At least one state, though, indicated that OOS does indeed include some in-person enforcement and actual actions taken to prevent further driving.
"Commercial vehicle drivers are placed out of service if they are found out of compliance with state and federal standards during a traffic stop or at a weigh station," a spokesperson for the Texas Department of Public Safety said. "This means they are not authorized to continue operating a commercial vehicle. When this happens, the vehicle’s owner or motor carrier is contacted and a qualified relief driver in compliance with state and federal standards may take responsibility of the vehicle and cargo."
What about when the OOS driver owns the truck? Or if the relief driver will take a few days to make it out?
"Commercial vehicles are towed when the driver placed out of service is also the vehicle’s owner, a relief driver is unavailable or there are concerns about the safety of the vehicle continuing to operate," the DPS spokesperson continued.
[Related: Texas announces 'zero tolerance' for non-English speaking truck drivers -- even intrastate]
Some drivers might pull a fast one and evade strict Texas police, but at least on paper the DPS spokesperson committed to making sure OOS drivers stay off the road, with this statement:
"DPS Troopers working on Texas roads take all matters of public safety into consideration when completing enforcement actions or responding to traffic crashes, knowing their job is not complete until everyone involved can leave a traffic stop or crash scene safely. The same is true for drivers who are placed out of service during a commercial vehicle inspection."
To get the full picture on how real drivers expect DOT's moves on non-domiciled CDLs will impact rates, download Overdrive's full survey report below.
