For the seventh time, Benesch is honored to announce that it has been named Law Firm of the Year in Transportation Law by Best Lawyers® Best Law Firms. This marks our 12th consecutive year (2014–2025) as a national first-tier ranked firm in Transportation Law.
English Language Proficiency Requirements for Drivers
The Federal Motor Carrier Safety Administration (FMCSA) issued an internal agency enforcement policy on May 20, 2025 (the Policy), outlining its approach to English language proficiency (ELP) for commercial motor vehicle drivers. This Policy is more stringent than past enforcement posture and is effective immediately. It reverses a 2016 directive from the Obama Administration that discouraged placing drivers out of service for ELP violations.
No Change to FMCSR Driver Qualification
President Trump's recent Executive Order on "Enforcing Commonsense Rules of the Road for America's Truck Drivers" does not change the Federal Motor Carrier Safety Regulations (FMCSRs). The FMCSRs require motor carriers to qualify drivers against several standards shown at 49 CFR § 391.11. One of those requirements is that a driver 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" 49 CFR § 391.11(b)(2).
The EO expressly recognizes that this requirement is and remains in force. The EO does not change the existing English proficiency requirement. It does, however, suggest that federal enforcement of this requirement has been absent in recent years, and the White House believes that the roads are less safe as a result.
The EO seeks to address this perceived government enforcement gap by directing the U.S. Department of Transportation's (DOT's) Federal Motor Carrier Safety Administration (FMCSA) to take new actions to enforce the existing English language proficiency requirement. The EO further requires the DOT to rescind its 2016 guidance limiting enforcement of this requirement and to issue new guidance in its place with procedures for FMCSA and law enforcement personnel. The Secretary of Transportation is authorized to take actions necessary to ensure that violations of the English language proficiency requirement result in the driver being placed out-of-service and to review non-domiciled commercial driver's licenses (CDLs) issued by state agencies.
New Regulatory Enforcement Policy Changes
Out-of-Service Criteria: The Policy does not change motor carrier compliance obligations under the Federal Motor Carrier Safety Regulations (FMCSRs). It does however signal that the FMCSA will begin placing drivers out-of-service for failing to demonstrate proficiency in reading, speaking, or understanding the English language.
Roadside Enforcement: The Policy also advises FMCSA personnel to initiate all roadside inspections in English. Drivers who cannot adequately communicate in response to the inspector's initial instructions are subject to a two-part test involving: (1) a verbal interview of the driver and (2) an assessment of the driver's ability to identify and interpret U.S. traffic signs. Failure to demonstrate ELP requirements during either part of the test may result in the driver being immediately placed out-of-service.
Consistent Enforcement: The Commercial Vehicle Safety Alliance (CVSA) added ELP violations to the North American Standard Out-of-Service Criteria, effective June 25, 2025, ensuring uniform enforcement of the Policy across all states. Once effective, inspectors may place the driver immediately out-of-service. When warranted, inspectors may initiate the disqualification of the driver from operating in interstate commerce.
Increased regulatory enforcement may lead to more frequent OOS orders for noncompliance, replacing the citations that have been common in recent years. These OOS orders risk the consequence of swift and immediate interruption to the business operations of drivers and their motor carriers. Shippers, brokers, and other commercial users of those services may also face interruption on a load-by-load basis where service providers are not compliant. The message out of the White House is clear that motor carriers and drivers must prepare for increased scrutiny of driver qualification files over the coming months. It is time for trucking companies to review their driver qualification practices, policies, and recordkeeping to ensure that all drivers meet this requirement and can withstand stricter enforcement.
Key Takeaways for Motor Carriers
The risks of enforcement consequences from failing to comply with the ELP element of driver qualification requirements at 49 CFR § 391.11 is now higher. Motor carriers must ensure all drivers can meet the ELP requirements to avoid drivers being placed out-of-service. Enforcement against even a single driver will disrupt operations, shipper experiences, and published compliance metrics.
Now is the time to review driver qualification procedures and qualification files. ELP assessments and compliance or awareness training in preparation for enforcement will be helpful as industry transitions to the new Policy. The precise enforcement instructions were redacted in the published version of the Policy. This means that motor carriers do not know exactly what questions and enforcement standards may be used at roadside. At its most basic level, ensuring drivers are adequately proficient in English and industry terminology and have an in-depth familiarity with U.S. traffic signs will be valuable.
Benesch's Transportation and Logistics team stands ready to proactively advise on safety compliance best practices, driver qualification policies, and training programs, and to defend all manner of enforcement actions when those occur.
Mining for Gold: Little-Used Regulatory Golden Nuggets That Can Make Life Easier for Shippers, Brokers, and Carriers
The transportation and logistics sector has always been one that is heavily regulated, both by pertinent federal agencies and by various state agencies. Although there is now a movement for selected deregulation by DOT, the bulk of the regulatory structure will undoubtedly remain intact. While this smorgasbord of federal regulation involves many parameters, restrictions, limitations, and guidelines, when mining deeply into the regulatory framework, there are various favorable regulatory morsels. These morsels can be extremely helpful to both those who provide transportation services, i.e., transportation brokers, forwarders, and carriers, and also to the consumers of transportation services, i.e., shippers and consignees. Two of the most putatively helpful, but yet rarely used, regulatory golden nuggets involve oft-litigated issues in transportation casualty and (cargo loss and) damage cases—Preventability Determinations and Carrier Selection.
Preventing Preventability Determination Admissibility— A Federal Register Escape Hatch
The FMCSA has an ongoing program to evaluate the "preventability" of 21 categories of crashes, to modify motor carrier information in the FMCSA's Safety Measurement System (SMS) to distinguish non-preventable crashes. This evaluation emanates from submissions of Requests for Data Review (RDR) to its national data correction system, through "Data Qs." This schematic occurs in the context of the overall SMS, which has used safety performance information in the Behavior Analysis and Safety Improvement Categories (BASIC), in addition to recordable crashes involving commercial motor vehicles, to prioritize carriers for safety interventions and to calculate crash indicator basic percentiles for each particular motor carrier. To encourage reporting by motor carriers through this system, the FMCSA noted that preventability determinations made under the program would not affect a motor carrier's safety rating or ability to operate, nor would FMCSA issue penalties or sanctions based upon these determinations. The program was intended to more accurately track the safety records of motor carriers, and also give motor carriers the opportunity to contest particular "crashes," through these submissions. Thus, the system contemplated the possibility that it would have a favorable impact upon motor carriers overall within the SMS system. However, to further encourage, and not penalize, reporting under this system, the FMCSA promulgated, in the Federal Register, a very clear explanation of what preventability determinations cannot do in civil litigation:
"A crash preventability determination does not assign fault or legal liability for the crash. These determinations are made on the basis of information available to FMCSA by persons with no personal knowledge of the crash and are not reliable evidence in a civil or criminal action. Under 49 U.S.C. § 504(f), these determinations are not admissible in a civil action for damages. The absence of a not preventable determination does not indicate that a crash was preventable. ...
See, 85 Fed.Regis. 27017, 2018 (updated, December 24, 2024) See also Cameron v. Werner Enterprises, 2016 WL 3030181 (D. Miss. 2016) (agreeing that prepared preventability report was inadmissible). This is a relatively narrow window of inadmissibility, since the contested evidence must specifically relate to preventability reporting. However, in the Reptile Theory era, every little bit helps!
Carrier Selection: Another Regulatory Assist from FMCSA! Another very helpful regulatory enactment that really aids in mitigating liability, here in carrier selection situations, is a fairly recent promulgation enacted by FMCSA. The FMCSA made changes to CSA's Safety Measurement System (SMS) public website to address concerns regarding the display of information on a commercial motor carrier's safety performance. The key changes that FMCSA made to the SMS public website and contained in the Code of Federal Regulations states that:
"Readers should not draw conclusions about a carrier's overall safety condition simply based on the data displayed in this system. Unless a motor carrier in the SMS has received an UNSATISFACTORY safety rating pursuant to 49 CFR Part 385 or has otherwise been ordered to discontinue operations by the FMCSA, it is authorized to operate on the nation's roadways." See Pub. L. No. 114-94, § 5223(d)(2), 49 USC § 31100.
This regulatory proclamation is potent ammunition to dispel the notion, in any case at the trial court level, that there was negligent selection of a motor carrier in a personal injury action—or otherwise. It is a clear pronouncement by the governmental agency specifically charged with regulating commercial transport on the public highways that motor carriers who have received "Conditional" ratings (or those that are unrated) are deemed to be authorized to operate on the nation's public highways. This regulatory enactment can be used as guidance by brokers and shippers in selecting carriers, and can provide them with a certain level of comfort. It can also be used by counsel, in litigation proceedings, to help to defeat negligent selection claims involving conditional carriers, by having the court take judicial notice of the regulatory promulgation.
An Ounce of Prevention: All that said, conditional carriers do create greater litigation risk for the broker or shipper that is selecting them. Although no counsel has held that a conditional safety rating carries the day for a plaintiff in a negligent selection action as a matter of law, courts remain skeptical of such ratings. See, e.g., McKeown v. Rahim, 446 F. Supp. 3d 64 (W.D. Va. 2020) (granting plaintiff leave to amend complaint to cure negligent hiring claim with allegations regarding a motor carrier's conditional safety rating). So, plaintiff's counsel will still use a conditional safety rating as ammunition. Consequently, it is advisable to, if at all possible, in the heat of operations, develop some additional due diligence for the qualifications of carriers that have a conditional rating. This due diligence could include a series of follow-up targeted inquiries to the motor carrier (which can be pre-prepared for operations people), a request for backup documentation on the carrier's response to the rating and/or appeal of the rating, and background documents that support the carrier's rationale and explanation. Importantly, any additional due diligence efforts in this regard should be retained by the broker or shipper. So, conditional carriers can be retained, but with an added level of precaution.
China Shipbuilding—Industry and Shippers Prepare for Tariffs
Domestic U.S. shipping interests are closely monitoring a United States Trade Representative (USTR) proposal for import and export trades involving Chinese vessels. There is a Section 301 investigation prompted by domestic industry concerns about China's industrial ambitions in sectors critical to U.S. economic and national security. The outsized role of China in international ocean shipping is greater than many would expect. China's global tonnage of shipbuilding market share grew from less than 5% in 1999 to over 50% in 2023. China owns over 19% of the commercial world fleet, controls production of approximately 95% of the world's shipping containers, and 85% of the world's intermodal chassis.
Extraordinary service fees and restrictions are anticipated to have a near-term effect of escalating certain ocean shipping costs. Commercial users of those services including cargo owners and the NVOCC intermediaries they use are widely expected to shoulder the cost through higher rates charged by vessel operators and through the net restriction in global shipping capacity.
China Shipbuilding Strategy Under Review
Five labor unions petitioned for this investigation on March 12, 2024, alleging that China exerts unreasonable and discriminatory policies that provide an unfair advantage across maritime industries. The USTR initiated investigation on April 17 of that year. In a report issued on January 16, 2025, the USTR determined that China's objective of dominating the maritime, logistics, and shipbuilding sectors represents an unreasonable risk to United States commerce. This is understood by the USTR as part of the China's Military-Civil Fusion strategy. The country's initiative will increase supply chain risk and reduce resiliency, deprive market-oriented businesses from opportunities, and allow for extraordinary control over these vital sectors.
The USTR found on April 17, 2025, that China has indeed methodically targeted the maritime, logistics, and shipbuilding sectors for global dominance over 30 years. The initiative included a series of overlapping national strategies such as its Five-Year Plans and the "Made in China 2025" initiative, as well as sector-specific policies to achieve its objectives. China is understood to have implemented top-down plans to gain global share in the sector through non-market advantages, such as direct and indirect state subsidies; preferential access to land, credit, and raw materials; suppressed labor costs and lack of effective labor rights; state-directed mergers and restructuring to create "national champions;" and export incentives and market access barriers to foreign competitors.
The USTR determined that these interventions enabled Chinese firms to undercut global competition, seize market share, and set the terms across the global maritime industry and supply chains. Moreover, China's targeting of the maritime industry has had profound and adverse effects on U.S. interests, including:
- Displacement of U.S. Firms: As China's share of global shipbuilding and logistics markets has grown, U.S. companies have lost market access, commercial opportunities, and investment returns.
- Reduced Competition: China's global overcapacity has impacted U.S. businesses and workers by depriving fair competition and commercial opportunities.
- Supply Chain Vulnerabilities: Increased dependency on Chinese-built ships, marine equipment, and logistics infrastructure has created economic security risks and undermined U.S. supply chain resilience.
Early Proposed Fees and Restrictions Very High
Market stakeholders expressed widespread concern about the initial proposal for tariffs and other restrictions on Chinese interests in the U.S. trades. The USTR initially proposed significant service fees on certain maritime services as well as other industry restrictions in response to these identified threats. For example, Chinese vessel operators would be charged up to $1 million per entrance of any vessel at a U.S. port or $1,000 per net ton of vessel capacity. Vessel operators would be charged up to $1.5 million per entrance of any vessel at a U.S. port based on a tiered schedule for the percentage of Chinese-built vessels in their global fleets. Exports of U.S. goods are restricted to U.S.-flagged, U.S.-built vessels by U.S. operators under a seven-year escalation plan. Exceptions may be granted for vessels not built in the U.S. if it can be shown that over 20% of U.S. products per year are transported on U.S.-flagged, U.S.-built vessels.
Newly Proposed Fees and Restrictions
In response to its findings in April of this year, the USTR announced the initiation of a rulemaking process for robust remedial measures that may include:
- Imposing additional tariffs on Chinese ships, marine equipment, and related logistics service.
- Importing restrictions on Chinese-built vessels and maritime services.
- Enhanced scrutiny of Chinese investments in U.S. maritime and logistics sectors.
- Supporting domestic industry through federal investment and incentives for U.S. shipbuilding and logistics firms.
The tariff burden for vessel owners and operators has gained the greatest attention from clients and commentators. This new proposal will impose tariffs in two phases. The first phase is intended to begin on October 14, 2025. Chinese vessel owners and operators would pay $50 per net ton landed at U.S. ports, which escalates every year until reaching $140 per net ton in 2028. All other vessel operators of Chinese-built vessels would pay the higher of $120 per container or $18 per net ton landed at U.S. ports, which escalates every year until reaching $250 per container or $250 per net ton in 2028. The second phase is intended to begin on April 17, 2028. Total LNG exports on U.S. flagged, U.S. built, and U.S. operated vessels must meet 1% of all utilized vessels, which steadily escalates to 15% in 2047.
Considerations for U.S. Businesses and Stakeholders
The USTR's newly proposed rule is more targeted in its application and timeline than earlier proposals. The possibility for cost impacts on the U.S. trades is nonetheless real because Chinese-made vessels and operators hold a significant share of the global shipping market. Beneficial cargo owners and non-vessel operating common carriers must take notice. At face value, service contracts and spot rates could see a $250 per container increase within three years due to this action alone. Longer term, a reinvigorated maritime industrial base in the U.S. and a diversified fleet across steamship lines may yield economic and strategic advantage for domestic stakeholders. The potential for retaliatory and countermeasure efforts from China is also real and could negatively impact U.S. trades as well as overseas operations.
One thing is certain: This action marks a decisive shift in U.S. trade policy, reflecting a broader strategic effort to confront systemic practices in the maritime sector. The Benesch team is closely monitoring USTR developments from the perspective of our broad experience in ocean contracting, counseling shippers and intermediaries, and developing trade and compliance strategies that can help stakeholders reduce their net exposure and lessen the effect of supply chain disruptions.
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