Originally published at: SBTC faces uphill battle in bid to strip New York, California of CDL authority, experts say - FreightWaves
Freight industry experts say the Small Business in Transportation Coalition’s petition to decertify the CDL programs of New York and California are unlikely to be granted.
This is James Lamb, Executive Director of SBTC. We respectfully offer these comments in response to this article…
SCOTUS generally adheres to the traditional legal definition that “shall” means “must” and creates a clear duty. For example, in “Gutierrez de Martinez v. Lamagno (1995),” the Court recognized that the use of “shall” generally indicates a command that is not permissive.
However, beyond the word “shall” in the 49 U.S. Code § 31312 Decertification statute, which suggests no Congressional intent other than establishing a duty to decertify…
"(a) In General.—If the Secretary of Transportation determines that a State is in substantial noncompliance with this chapter, the Secretary shall issue an order to—
(1) prohibit that State from carrying out licensing procedures under this chapter; and
(2) prohibit that State from issuing any commercial driver’s licenses until such time the Secretary determines such State is in substantial compliance with this chapter."
…is the issue of the Department’s own duly-promulgated regulations that state decertification procedurally follows such a final determination of “substantial non-compliance.”
49 CFR § 384.405 - Decertification of State CDL program states:
“(e) Decertification: Final determination. If, after considering all material submitted by the State in response to the FMCSA preliminary determination, the Administrator decides that substantial noncompliance exists, which warrants decertification of the CDL program, he/she will issue a decertification order prohibiting the State from issuing CLPs and CDLs until such time as the Administrator determines that the condition(s) causing the decertification has (have) been corrected.”
The agency has therefore obligated itself to decertify as a matter of agency rules and therefore cannot assert executive discretion outside its regulatory scheme to ever find substantial non-compliance yet not decertify because the rule conforms to the statute in making decertification automatic through the phrase “which (we insert: always) warrants decertification of the CDL program…”
So, it is actually FMCSA that has the “uphill battle” to (1) defend against Congress’ clear statutory mandate as to what must happen once substantial non-compliance is found to be the agency’s “final determination;” and (2) explain how their regulatory scheme doesn’t also follow that Congressional mandate. Please note, there is no use of the word “may” in the rule that would support an argument that issuance of a decertification order is ever discretionary. The agency uses “will” instead.
However, even if the agency disagrees with us on interpretation of the rule, it faces a significant hurdle overcoming our argument that use of the word “shall,” in the context of what Congress envisioned in this enabling legislation granting decertification authority must happen next, creates a clear, bona fide “duty” to decertify.
We trust this addresses Mr. Reed’s take on the matter and look forward to the Court ordering decertification of CA & NY by the Secretary.
Meanwhile, Americans fed up with illegal immigrant operators of commercial motor vehicles unlawfully licensed by these and other states who are causing motorists and passengers to lose their lives… are signing our… Petition · Stop Unlawful Issuance of Commercial Driver Licenses to Illegal Immigrants - United States · Change.org… online petition in support. They are not thinking about whether that would inconvenience Big Trucking. They, like SBTC, want to “Make the Roads Safe Again.”
Sounds like trumpy faggots
Trumpy faggots
I’m licensed in CA and I agree with Mr. Lamb. Hopefully he prevails. Too many of these drivers that have obtained their license in CA and NY are kiIIing people because they can’t read, write, or speak English. Most of these drivers are obtaining their license illegally or in vehicles that are not what they are operating in real life (single axel daycabs with 26ft pub trailer)