CDL rule isn’t about foreign drivers being less safe, FMCSA says

The Federal Motor Carrier Safety Administration’s final rule that will remove about 200,000 non-domiciled CDLs isn’t because foreign drivers have been proven to be less safe, the agency told the U.S. Court of Appeals for the District of Columbia Circuit.

Instead, the rule focuses on FMCSA’s inability to conduct proper background checks into these drivers and the problems caused by allowing an Employment Authorization Document (EAD) to serve as evidence of lawful presence in the U.S.

The EAD is a photo ID card issued by the U.S. Customs and Immigration Services that proves a noncitizen is legally permitted to work in the U.S. It’s commonly referred to as a “work permit.”

Non-domiciled CDL holders are often unable to be fully evaluated, whereas U.S. applicants have the past 10 years of their driving history reviewed.

“That requirement recognizes what empirical research demonstrates and what common sense suggests: that a driver’s history is among the most powerful predictors of whether he or she will drive safely in the future,” FMCSA wrote in its response brief filed on Wednesday, July 15. “This driver-history screening is of limited utility for applicants who are aliens not domiciled in the United States because the databases do not contain foreign driving records and states otherwise lack the ability to obtain those foreign driving records. This rule closes this gap by precluding aliens whose driving history cannot be adequately vetted from obtaining a CDL.”

In its brief filed on June 15, the petitioners called FMCSA’s rule “arbitrary” and said that it is not rooted in safety. Attorneys for the petitioners said that the agency has no data showing that non-citizens cause more crashes than U.S. citizens.

FMCSA’s rule, which took effect in March, no longer accepts EADs as a means of obtaining a CDL.

“The rule’s exclusion of immigrants from holding CDLs exceeds FMCSA’s statutory authority and is arbitrary and capricious,” the attorneys for the plaintiffs wrote. “Although FMCSA asserts that its underlying concern is to ensure safety, FMCSA admits it has no evidence that the immigrants excluded by the rule drive any less safely than people whom FMCSA continues to allow to hold CDLs.”

However, FMCSA contends that the plaintiffs are missing the point.

“Taken together, these two realities of the commercial driving landscape – the importance of driving history and the inaccessibility of foreign driving records – created, in FMCSA’s view, a ‘significant safety gap’ that put highway users at heightened risk of collisions with unvetted dangerous drivers,” the agency wrote in its response brief.

What about DACA recipients?

Plaintiffs argue that FMCSA’s vetting rationale doesn’t apply to Deferred Action for Childhood Arrivals (DACA) recipients, who have been in the U.S. since they were children. Jorge Rivera Lujan, a named plaintiff, has lived in the United States since he was 2 years old.

With respect to DACA recipients, however, FMCSA contends that vetting isn’t the issue. Instead, the problem lies with EADs.

FMCSA said that the allowance of EADs led to administrative issues at state agencies and resulted in CDLs being awarded to drivers who shouldn’t have been eligible. The agency’s final rule requires non-domiciled CDL applicants to demonstrate lawful immigration status with an unexpired passport and Form I-94 or I-94A.

“Under prior FMCSA regulations, applicants for a non-domiciled CDL could demonstrate lawful presence in the United States by presenting an EAD issued by the Department of Homeland Security,” the agency told the court. “But FMCSA’s annual reviews demonstrated that clerks at state agencies across the country routinely struggled to interpret EADs, leading to widespread errors in multiple aspects of the non-domiciled CDL issuance process.”

FMCSA said it determined that the new form requirements would be simpler for state agencies to apply. However, that change means DACA recipients are excluded from obtaining a non-domiciled CDL because they rely on EADs.

“Petitioners’ focus on DACA recipients largely ignores FMCSA’s explanation that their ineligibility for non-domiciled CDLs stems not from a claim about the accessibility of their driving history, but instead because DACA recipients lack the documentation FMCSA has determined should be required to demonstrate eligibility for a non-domiciled CDL,” the agency wrote in its response brief. “And as to that documentation requirement, petitioners have no meaningful response to FMCSA’s extensive evidence of the states’ difficulties in using EADs in issuing compliant non-domiciled CDLs.”