E X E M P T I O N
A P P L I C A T I O N
April 8, 2022
The Honorable Pete Buttigieg
Secretary of Transportation
1200 New Jersey Avenue SE
Washington, DC 20590
Re: Application for Exemption filed Pursuant to 49 CFR § 381.
Dear Secretary Buttigieg:
As you know, the SBTC submitted a petition for rulemaking --as a follow-up to our January 3, 2022 petition for preemption and/or rulemaking --on March 18, 2022, which stated:
Comes now, the SBTC trade group, whose 15,000 members have a vested interest in highway safety and vicarious liability, to request specific rulemaking, offering an amendment to 49 CFR § 383.133(b)(3), which currently states:
(3) Each knowledge test must be valid and reliable so as to ensure that driver applicants possess the knowledge required under § 383.111. The knowledge tests may be administered in written form, verbally, or in automated format and can be administered in a foreign language, provided no interpreter is used in administering the test.
We recommend the rule be revised to the following text (changes underlined):
(3) Each knowledge test must be valid and reliable so as to ensure that driver applicants possess the knowledge required under § 383.111. The knowledge tests may be administered in written form, verbally, or in automated format and shall be administered in English.
That matter is pending.
1775 I. (Eye) Street, NW, Suite 1150, Washington, DC 20006
Secretary Pete Buttigieg
April 8, 2022
Page 2
Thereafter, SBTC filed with USDOT OIG a complaint and request for audit on March 25, 2022, asking the USDOT Inspector General to address what SBTC contends are “inconsistencies among the language in 49 CFR § 383.133(b)(3), 49 CFR § 383.111, and 49 CFR § 391.11.”
Specifically, SBTC stated to the OIG:
The SBTC is petitioning on this issue because the FMCSA has never resolved this matter; that is, they have failed to follow your 2002 recommendations that they revise Federal standards to set proper and consistent state guidelines for English language proficiency insofar as knowledge testing is concerned. While FMCSA thereafter clarified that skills testing must be conducted in English without the use of a translator, the agency has ignored your proper finding that "the Federal standard on CDL testing and licensing does not place any requirement on the States to test for language proficiency."
While the agency may take the position that allowing all states to administer the knowledge test in foreign language is consistent in terms of being universal among the states, this policy is not consistent in terms of reconciling the existing aforementioned regulations, including 49 CFR § 391.11; that is, the regulations collectively require drivers speak and read English including English road signs, yet they neglect to require the states to show through written proficiency examination, that drivers meet this Federal requirement before they issue a CDL to be used in furtherance of interstate commerce under the full faith and credit clause, and they instead pass the buck and place the onus of compliance with 49 CFR § 391.11 on carriers instead of the states. It should be the state's responsibility to test for and certify English proficiency during the CDL licensing process, not be left to a matter of a motor carrier's responsibility thereafter.
That matter is also pending.
The SBTC now hereby files this application for a five-year exemption from 49 CFR § 391.11 “General qualifications of drivers,” specifically subdivision (a) insofar as it states:
“Except as provided in § 391.63, a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless that person is qualified to drive a commercial motor vehicle.”
This application for exemption is applicable only to 49 CFR § 391.11(a) as it applies to 49 CFR § 391.11(b)(2).
Secretary Pete Buttigieg
April 8, 2022
Page 3
This application for exemption is limited to motor carriers per se and in no way is a request to relieve a driver of the part of this subdivision that states:
“A person shall not drive a commercial motor vehicle unless he/she is qualified to drive a commercial motor vehicle.”
On behalf of our small business constituency, we request the exemption be made applicable to a “class of persons” under 49 CFR § 381.310 that is comprised of all motor carriers in NAICS category 484230 (Specialized Freight (except Used Goods) Trucking, Long-Distance) with revenues under $30 million, which are defined as “small businesses” by the SBA, notwithstanding your existing regulatory requirement codified at 49 CFR § § 391.1(b), which holds
“(a)n individual who meets the definition of both a motor carrier and a driver employed by that motor carrier must comply with both the rules in this part that apply to motor carriers and the rules in this part that apply to drivers.”
It is the SBTC’s position that so long as the FMCSA does not follow the 2002 OIG’s recommendation to place the onus on the states to determine the English language proficiency that is required by 49 CFR § 391.11(b)(2), it is inappropriate to enforce this rule against motor carriers, especially those small entities beyond one man owner-operators employing drivers that do not have in-house compliance departments able to conduct their own state level-like testing for English proficiency.
It is clear to us that the role of testing for both knowledge and English proficiency lies with the states. Much like the Transportation Intermediaries Association has pursued hiring standards to mitigate their members’ vicarious liability, we believe it is appropriate for us to suggest that a motor carrier should be able to confidently assert it has performed its due diligence and is in compliance with 49 CFR § 391.11(b)(2) and 49 CFR § 391.11(a) the moment it verifies that a prospective driver has indeed been duly issued a CDL by a state government; that is, a CDL should --in and of itself --be evidence that a driver has been certified as being proficient in the English language with no further action required by the motor carrier being necessary.
Accordingly, we hereby request a limited five-year exemption from 49 CFR § 391.11(a) as it relates to 49 CFR § 391.11(b)(2) to afford the OIG time to re-examine this matter through a follow up audit to its 2002 audit on CDL standards, report its findings and recommendations-- or reaffirm its past 2002 findings and recommendations, secure the
Secretary Pete Buttigieg
April 8, 2022
Page 4
agency’s agreement to comply with their findings and recommendations, and engage in appropriate rulemaking with respect to 49 CFR § 383.
My name is James Lamb. I am the Executive Director of the Small Business in Transportation Coalition, Inc. My mailing address is 1775 I. (Eye) Street, NW, Suite 1150, Washington, DC 20006. My daytime telephone number is 202-587-2751.
We are unable to name one particular individual or motor carrier that would be responsible for the use or operation of CMVs as this is a class exemption application being filed by a trade association, not one by a particular driver or motor carrier.
We are unable to offer a principal place of business for a particular motor carrier as this is a class exemption application being filed by a trade association, not one by a particular motor carrier. The SBTC’s principal place of business is the same as its mailing address.
We are unable to offer a “USDOT identification number for the motor carrier” because the applicant is not a motor carrier. This is a class exemption application being filed by a trade association, not one by a particular motor carrier.
This letter shall serve as our written statement that describes the reason the exemption is needed, including the time period during which it is needed.
This letter shall serve as our written statement that identifies the regulation from which SBTC would like the class to be exempted from.
The SBTC suggests that under the terms and conditions we have proposed, no drivers would be covered by the exemption, as drivers’ obligations not to drive without being qualified in terms of being proficient in the English language would not be impacted by this application. Only motor carrier liability for compliance with 49 CFR § 391.11(a) as it applies to 49 CFR § 391.11(b)(2) would be impacted.
In terms of assessing the safety impacts the exemption may have, because drivers would still be liable for compliance with 49 CFR § 391.11(a) as it applies to 49 CFR § 391.11(b)(2), there would be no relief for drivers who fail to comply with their obligation that they not operate a CMV without being duly qualified and 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.”
Secretary Pete Buttigieg
April 8, 2022
Page 5
By temporarily placing the onus for compliance with the English proficiency standard solely on drivers and not motor carriers until such time as the FMCSA decides whether to shift responsibility for same to the states, we believe a level of safety that is equivalent to the level of safety that would be obtained by complying with the regulation will be achieved.
In terms of describing the impacts industry could experience if the exemption is not granted by the FMCSA, carriers will be unfairly susceptible for vicarious liability for having failed to perform a certification role that should be a bona fide state government function in instances where they have been defrauded by self-certifying drivers who have presented a state-issued CDL and have represented to carriers they were indeed qualified to drive when they were in fact not qualified.
In terms of “research reports, technical papers, and other publications and documents you reference,” we hereby incorporate the OIG’s May 8, 2002 “Improving the Testing and Licensing of Commercial Drivers” audit report by reference.[1]
In closing, our position remains that the states’ current practice of allowing knowledge tests to be administered in languages other than English skirts the states’ compelling state interest to advance the safety objective you assert in your Federal regulation at 49 CFR § 391.11(b)(2) that drivers should not drive commercial motor vehicles unless they “(c)an 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.”
On behalf of the small motor carrier industry, I thank you for your consideration.
Sincerely,
/s/ JAMES LAMB,
SBTC Executive Director
cc: SBTC Board of Directors
Laurence Socci, Esq.
FMCSA via regulations.gov general mailbox
