Since the USDOT’s September 29 interim final rule that narrowed the circumstances in which states may grant or renew non-domiciled commercial driver’s licenses (“CDLs”), the Administration has traded legal letters with the State of California on their compliance with the rule and also responded to legal petitions seeking to overturn the rule itself. On November 13, by a vote of 2-1 the U.S. Court of Appeals for the DC Circuit ordered a stay on the rule pending court review. In response, the Federal Motor Carriers Safety Administration (FMCSA) allowed States to continue non-domiciled CDLs in accordance with the prior rules and guidance except for “States that are subject to a correction action plan” which includes the State of California, among others. 

States issue non-domiciled CDL to applicants domiciled outside the United States or in a State that does not issue CDLs. Currently all U.S. States do issue CDLs, so in practice non-domiciled CDLs are issued almost entirely to non-U.S. citizens. CDLs are required for driving any large motor vehicle, including Class 7 and 8 trucks as well as school and transit buses.  

FMCSA’s previous rules required States to confirm an applicant had an unexpired employment authorization document or an unexpired foreign passport accompanied by an approved I-94 form documenting their most recent admittance to the U.S.  Under the new rule, the States must require both documents and the individual must have a work visa in one of the following classifications: H-2A—Temporary Agricultural Workers, H-2B–Temporary Non-Agricultural Workers, or E-2–Treaty Investors. This change excludes asylum seekers, asylees, refugees, and DACA recipients, who are lawfully present and eligible for employment in the United States, among others. Nationwide, non-domiciled CDL holders account for approximately 5 percent of all CDL holders and this rule will impact an estimated 97% of these noncitizens CDL holders, causing approximately 194,000 drivers to exit the market.  

The petitioners against the rule raised several procedural and factual issues with the interim final rule (IFR). First, while statute requires FMCSA to consult with States, the Administration chose not to do so, calling it not practicable. FMCSA also claimed they had good cause to forego any notice and comment and use of an IFR, a process that the Trump Administration has encouraged. However, petitioners argued, and the court agreed, that their justification based on public safety was not based on sufficient evidence. In fact, non-domiciled CDL holders are underrepresented in fatal crashes: while they account for approximately 5 percent of all CDL holders, they account for only about 0.2 percent of fatal crashes. Moreover petitioners noted that companies and agencies will be forced to replace the 194,000 licensed drivers exiting the market with newly licensed, less experienced and less safe drivers, therefore harming public safety. 

The briefs submitted to the docket included a variety of pointed critiques of the FMCSA rule. King County, which noted that it employs noncitizens with CDLs to drive public transit buses, declared that without immediate relief staying the IFR, they would face an immediate shortage of licensed bus drivers and substantial budget impacts from the need to hire and train drivers. Calling the emergency basis for the IFR a “contrived emergency”, the petitioners declared that “the true purpose of the IFR is plain: to further President Donald J. Trump’s immigration enforcement efforts and perpetuating the myth that immigrants are dangerous and criminal.” An amicus brief submitted on behalf of the approximately 150,000 Sikh truck drivers noted a surge in xenophobic activity targeting truck drivers and other Sikhs in the freight industry. (An astounding 1 in 5 Sikhs in the United States are truck drivers.) 

Two judges of the three judge panel granted the nationwide stay on the basis that the petitioners were likely to succeed in their claims. The third judge dissented both based on her objection to the use of emergency stay motions as well as on the merits of the claims against FMCSA’s process and substantiation of facts. Secretary Duffy responded to the court ruling with a post on X stating “I will FIGHT this ruling” and calling the process for grant foreign drivers licenses “a DIRECT THREAT to the public.” 

Despite this stay, FMCSA has continued to pursue corrective actions in states they consider out of compliance with their CDL regulations, and they’ve indicated does not affect the corrective action plans. Most recently, FMCSA has made a Preliminary Determination of Noncompliance in Pennsylvania. However the highest profile of these state interactions has been with the California Department of Motor Vehicles, which have been the subject of colorful press releases from USDOT Secretary Duffy.   

In September, Secretary Duffy said “California’s reckless disregard is frankly disgusting” and threatened that FMCSA would withhold $160 million of California’s federal highway apportionments if the state failed to come into compliance within 30 days. The much more legalistic Preliminary Determination of Noncompliance served by FMCSA makes clear the steps that California must take, per statute, to come into compliance as well as the threat to California apportionment withholding, which could not be implemented before FY 2027. Statute allows the state to respond to the FMCSA preliminary determination to correct any facts or propose corrective actions as appropriate. California provided their response on October 26, in which they acknowledged certain challenges in their system but by and large rejected the findings, stating that “a thorough review of non-domiciled CDL records did not reveal inconsistency with the requirements of 49 U.S.C. § 31311 and its implementing regulations, parts 383 and 384 of Title 49, as they existed before the IFR was issued.” FMCSA responded to California’s letter on November 13, three days following the administrative stay, in a letter that expressed a high level of vitriol over the differences in interpretation of law and regulation, but also “acknowledge[d] that DMV has implemented, or indicates that it will implement, some of the corrective actions required in the preliminary determination.” Yet FMCSA also “emphasize[d] that it is important that DMV’s corrective action include an immediate pause of non-domiciled CLP and CDL licensing until DMV ensures that its practices comply with each and every standard.” 

At issue in these backs-and-forths with California is an apparent disagreement in the several key elements of the regulations pertaining to issuing non-domiciled CDLs. One such disagreement is the treatment of citizens of Mexico and Canada. Many of the irregularities found by FMCSA’s audit of California licensing had to do with licenses issued to Mexican citizens. Due to a reciprocity agreement, drivers from Mexico and Canada may use their CDLs to drive in the U.S. and therefore are barred from obtaining a non-domiciled CDL. California’s interpretation is that the prohibition applies to drivers holding a commercial driver’s license issued under the Canadian National Safety Code or a new Licencia Federal de Conductor issued by Mexico, but that a Mexican or Canadian national, living legally in the U.S., who does not have a CDL from their home country, could apply for a non-domiciled CDL. USDOT’s position is that “States may not issue a non-domiciled CLP or CDL to citizens of Mexico or Canada” with the exception of DACA recipients (although that interpretation was part of guidance that was repealed in September and then was part of the administrative stay this week.) 

Another important point of disagreement relates to the period of availability of a license. According to California, the prior FMCSA rules required only that CDLs expire within eight years of issuance. FMCSA in contrast claims that their prior rules required DMVs “to ensure that the non-domiciled CLP or CDL period of validity does not exceed the expiration of the lawful presence documents.” California claims that the fact that FMCSA changed that provision in their updated rule is evidence that the requirement did not previously exist, but FMCSA’s response claimed that the new rule was meant merely to “underscore existing substantive rules governing the period of validity for non-domiciled CLPs and CDLs, not to create new rules.” 

Despite somewhat pointed responses in the letters, California DMV and FMCSA appear willing to work together to improve the licensing procedures, and FMCSA indicated that in staff meetings California had provided an update to the agency that they would be revoking licenses of 17,000 individuals as part of their efforts to improve procedures and come into compliance. Any inter-agency cooperative discussions may not be improved by the Secretary immediately using this information in a press release titled “NEWSOM CAUGHT REDHANDED” and implying that the revocation of the licenses has been forced by USDOT.