DOT bracing for a legal fight over non-domiciled CDL decision

The recent court ruling pausing an interim rule restricting who qualifies for non-domiciled CDLs isn’t sitting well with the Department of Transportation chief.

“People are dying, and we thought it was appropriate to protect Americans, and we should have an emergency rule, not to go through the month-long process. We did that,” DOT Secretary Sean Duffy told Laura Ingraham on the Ingraham Report, Monday, Nov. 17.

The non-domiciled CDL rule in question

Duffy didn’t mince words when he rolled out an interim final rule in late September, calling the surge in non-domiciled CDLs a “national emergency.” After a federal audit, DOT officials said they found that states were issuing commercial licenses to foreign drivers who were either in the country illegally or working past the dates they were authorized to be here.

The interim final rule, which took effect immediately, attempted to shut down that loophole. An Employment Authorization Document (EAD) alone no longer qualifies someone for a non-domiciled CDL. The rule also bars asylum seekers, asylees, refugees and DACA recipients from eligibility.

The court steps in

On Monday, Nov. 10, the court hit pause on the new rule that was expected to sideline about 194,000 non-domiciled CDL holders. The judges issued an “administrative stay,” essentially freezing the rule while they took a closer look at the emergency motions filed against it.

“This administrative stay is simply to give the court enough time to review the motions,” the order said. “It should not be interpreted as a decision on their merits.”

Three days later, on Thursday, Nov. 13, the U.S. Court of Appeals went a step further and issued a full emergency stay – based on the merits this time. The panel’s decision granting the stay stated that petitioners were likely to succeed on three key arguments challenging the rule.

Duffy responds

“The court has rolled us back and said, ‘Well, we’re not quite sure this is an emergency. We want to see more data.’ And I’m like, watch … any show on television, and you see the risk to the American people,” Duffy said. “We’re working on the legal strategy right now, but we are not going to take this lying down. We are going to do all we can to protect the American people.”

Petitioners outline their case

The same day as Duffy took to the airwaves, one of the petitioners in the case against the non-domiciled CDL rule filed their “statement of issues” with the court.

The plaintiffs plan to argue:

1. Whether FMCSA lacked good cause to issue the interim final rule
2. Whether FMCSA violated federal regulations by issuing the interim final rule without “consultation with the states”
3. Whether FMCSA exceeded its authority by issuing the interim final rule
4. Whether the interim final rule is arbitrary, capricious or otherwise contrary to the Administrative Procedures Act

A date for oral arguments has not been set.

Other options

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

More than just non-domiciled CDLs

Ingraham turned the interview toward CDL scams. The host highlighted a recent bust in New York. Four women would either go to DMVs in disguise – sometimes sporting beards – to apply for commercial learner’s permits or, in some cases, take the test.

CDL scams are not uncommon and are definitely on the radars of not only Duffy but also the newly appointed FMCSA administrator, Derek Barrs.

“I think you have CDL mills, these private businesses that are allowing people to get commercial driver’s licenses without having the requisite skill set to actually get – I mean, they can drive school buses, they can drive oil tankers – on our roadways,” Duffy said in the Ingraham interview. “They don’t know what they’re doing, but they’re being pushed forward by these CDL mills. On top of that, Laura, you’re supposed to be able to speak English in America. You have to be proficient in the English language. A lot of these people can’t even speak the language.”

On Oct. 30, the pair came out swinging against CDL mills and CDL fraud during a joint press conference.

Barrs wasted little time showing his eagerness to enforce against bad actors in the industry.

Barrs, who was confirmed as FMCSA’s leader earlier this month, drove home the message to drivers and businesses that fail to comply with the agency’s safety standards.

“If you don’t want to follow our standards, then you need to stay out of the profession,” Barrs said. “If you are not following the rules, we’re going to make sure we’re going to put you out of business. We’re going to come after you.” LL

Senior Editor Mark Schremmer and Staff Writer SJ Munoz contributed to this report.