An emergency interim final rule to clean up the non-domiciled CDL system has been paused by the U.S. Court of Appeals for the D.C. Circuit.
On Monday, Nov. 10, the court ordered that the rule, which was expected to remove about 194,000 current non-domiciled CDL holders out of the trucking industry, be “administratively stayed” pending further order of the court.
“The purpose of this administrative stay is to give the court sufficient opportunity to consider the emergency motions for stay pending review and should not be construed in any way as ruling on the merits of those motions,” the court wrote on Nov. 10.
The rule
Calling it a “national emergency,” Transportation Secretary Sean Duffy announced an interim final rule in late September to get a handle on states issuing non-domiciled CDLs to foreign drivers. Following an audit, Duffy said the DOT determined that many of these CDLs were issued to drivers who were in the country illegally or for a period exceeding the time they were authorized to work in the United States.
The rule, which took effect immediately, made it so that an Employee Authorization Document (EAD) was no longer enough to obtain a non-domiciled CDL. Additionally, asylum seekers, asylees, refugees and Deferred Action for Childhood Arrivals (DACA) recipients would be excluded from eligibility. FMCSA estimated that the changes would take 194,000 current non-domiciled CDL holders out of the trucking industry. At the same time, many of those same individuals would remain eligible for other employment in the U.S.
Although the rule was made effective immediately, the Federal Motor Carrier Safety Administration is continuing to accept comments through Nov. 28. As of Nov. 11, nearly 4,900 comments had been submitted.
The lawsuit
In October, a lawsuit was filed, saying that the rule would have “devastating consequences” for hundreds of thousands of CDL holders.
The lawsuit was filed on Oct. 20 by the Public Citizen Litigation Group, the American Federation of Teachers and the American Federation of State, County and Municipal Employees.
“This unlawful rule seems intended to put people authorized to work in the United States out of work, solely because of the prejudices of the Trump administration,” Wendy Liu, attorney at Public Citizen Litigation Group, said in a news release. “We are asking the court to promptly invalidate the rule to prevent devastating consequences for our clients and the hundreds of thousands of people across the country who depend on commercial driver’s licenses for their livelihoods.”
On Oct. 24, the groups filed an emergency motion to stay the rule while the litigation is ongoing.
The plaintiffs said that FMCSA did not justify its decision to make the rule effective before going through a typical rulemaking process.
“FMCSA does not meaningfully contest that the factual evidence it cited does not demonstrate an emergency,” the plaintiffs wrote. “And FMCSA has expressly disclaimed ‘a direct link between immigration status and a driver’s ability to safely operate a commercial motor vehicle.’”
The agency argued that much of the danger surrounding issuing non-domiciled CDLs to foreign drivers is that there is no way to review their driving records.
“Without a verified driving record, 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,” attorneys for FMCSA wrote in the Oct. 31 response brief. “Thus, limiting the eligibility of classes of potential applicants whose driving history cannot be ascertained will increase safety by appreciably reducing the number of non-domiciled CDL drivers with unknown driver safety records on the nation’s highways.”
Reaction
The FMCSA did not immediately respond to Land Line’s request for comment.
The Public Citizen Litigation Group offered the following statement:
“The court’s order gives drivers across the country a chance to continue working and supporting their families and communities,” Liu wrote. “We understand that FMCSA will inform state licensing agencies tomorrow morning about the stay, so that they know that FMCSA’s rule is not in effect and should not be applied. We are glad that the court put FMCSA’s unlawful rule on hold temporarily, and we hope that the court will continue to put the rule on hold while the lawsuit proceeds.”
The Owner-Operator Independent Drivers Association said it supports FMCSA’s efforts to close loopholes in the non-domiciled CDL program.
“OOIDA and truckers across America support the Trump administration’s action to restore integrity to the issuance of non-domiciled CDLs,” OOIDA President Todd Spencer said. “For too long, loopholes in this program have allowed unqualified drivers onto our highways, putting professional truckers and the motoring public at risk.”
The Association added that the lawsuit over how the rule was issued is reason to support Rep. David Rouzer’s Non-Domiciled CDL Integrity Act, which would codify the interim final rule into law. HR5688 was introduced on Oct. 3 and currently has 33 co-sponsors.
“While the policy itself is sound, it is now tied up in court over procedural technicalities in how the rule was issued, not its substance,” Spencer added. “Representative Rouzer’s Non-Domiciled CDL Integrity Act reflects the Trump administration’s policy and would make it permanent. Passing this bill and getting it signed into law will protect these critical safety reforms from being undone by future court decisions or a new administration. Congress must act immediately to make President Trump’s non-domiciled CDL crackdown the law of the land.” LL
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