The U.S. Court of Appeals for the D.C. Circuit has stopped an emergency interim final rule to tidy up the non-domiciled CDL system. The ruling, which was supposed to expel roughly 194,000 present non-domiciled CDL holders from the trucking business, was “administratively stayed” by the court on Monday, November 10, awaiting a future order. On November 10, the court said, “This administrative stay should not be read in any way as deciding on the merits of those applications and is intended to provide the court sufficient opportunity to examine the emergency motions for stay awaiting review.”
The rule
In late September, Transportation Secretary Sean Duffy declared a “national emergency” and issued an interim final rule to regulate states granting non-domiciled CDLs to foreign drivers. According to Duffy, after conducting an audit, DOT found that a large number of these CDLs were granted to drivers who were either in the country illegally or for longer than the amount of time they were permitted to work in the US. With the rule’s immediate implementation, obtaining a non-domiciled CDL no longer required an Employee Authorization Document (EAD). Eligibility would also be denied to refugees, asylum seekers, asylees, and participants of Deferred Action for Childhood Arrivals (DACA). An estimated 194,000 existing non-domiciled CDL holders would leave the trucking business as a result of the changes, according to the FMCSA. Many of those same people would still be able to find other jobs in the United States at the same time. Notwithstanding the rule’s immediate implementation, the Federal Motor Carrier Safety Administration is still taking comments through November 28. Nearly 4,900 comments had been sent in as of November 11.
The lawsuit
The rule would have “devastating ramifications” for hundreds of thousands of CDL holders, according to a complaint filed in October. The American Federation of Teachers, the American Federation of State, County, and Municipal Employees, and the Public Citizen Litigation Group filed the case on October 20. According to a news release from Wendy Liu, an attorney at Public Citizen Litigation Group, “this unconstitutional rule seems intended to put persons permitted to work in the United States out of job, merely because of the prejudices of the Trump administration.” “In order to avoid catastrophic outcomes for our clients and the hundreds of thousands of people nationwide who rely on commercial driver’s licenses for their livelihoods, we are requesting that the court immediately declare the law unconstitutional.” The groups filed an emergency motion to halt the regulation while the lawsuit is still pending on October 24. According to the plaintiffs, FMCSA failed to provide a rationale for its decision to implement the rule prior to undergoing a standard rulemaking procedure. The plaintiffs said, “FMCSA did not seriously challenge that the factual material it offered does not indicate an emergency.” Additionally, the FMCSA has explicitly denied that there is “a direct link between a driver’s ability to operate a commercial motor vehicle safely and their immigrant status.” The government contended that the inability to check foreign drivers’ driving histories poses a significant risk when granting non-domiciled CDLs. In the Oct. 31 response brief, FMCSA attorneys stated that “there is a serious risk that unsafe or high-risk drivers – who may have prior violations, suspensions, or a history of crashes in foreign jurisdictions – could be granted non-domiciled CDLs and operate large trucks and buses on U.S. roadways without a verified driving record.” Thus, by significantly lowering the number of non-domiciled CDL drivers with unknown driver safety records on the country’s highways, restricting the eligibility of groups of prospective candidates whose driving histories cannot be determined will improve safety.
Reaction
A request for comment from Land Line was not immediately answered by the FMCSA. The following statement was provided by the Public Citizen Litigation Group: Liu stated, “The court’s order allows drivers nationwide an opportunity to continue working and supporting their families and communities.” We are aware that tomorrow morning, FMCSA will notify state licensing agencies about the stay, letting them know that the rule is not in force and should not be used. We are happy that the court temporarily halted FMCSA’s illegal rule, and we hope that the court will keep the rule suspended while the legal action is ongoing. According to the Owner-Operator Independent Drivers Association, FMCSA’s attempts to address flaws in the non-domiciled CDL program are something that the organization supports. OOIDA President Todd Spencer stated, “The Trump administration’s move to restore integrity to the issuing of non-domiciled CDLs is supported by OOIDA and truckers across America.” “This program’s flaws have put professional truckers and the driving public at risk by permitting unqualified drivers to travel on our highways for far too long.” The Association further stated that the lawsuit about the rule’s issuance provides a justification for endorsing Rep. David Rouzer’s Non-Domiciled CDL Integrity Act, which would become law. Since its introduction on October 3, HR5688 has attracted 33 co-sponsors. Spencer went on to say, “The policy is sound in and of itself, but it is currently stuck in court over procedural details of how the rule was published, not its content.” The Trump administration’s approach is reflected in Representative Rouzer’s Non-Domiciled CDL Integrity Act, which would make it permanent. If this bill is passed and signed into law, it will prevent future court rulings or a change in government from undoing these important safety reforms. For President Trump’s non-domiciled CDL crackdown to become law, Congress must take urgent action. LL
