A federal court of appeals has issued a stay pending appeal of the Federal Motor Carrier Safety Administration’s interim final rule on states granting CDLs and CLPs to persons not domiciled in the licensing state. This means that the requirement of the FMCSA's rule may not be imposed while the court of appeals is considering the merits of the appeal. But this decision also indicates that the court is likely to ultimately strike down the final rule for one of several reasons.

The court (in a 2-1 decision) has identified three separate reasons why the petitioners are likely to succeed on the merits of their claims. First, the statute relied on by the FMCSA requires the agency to consult with the states before prescribing uniform minimum standards "for testing and ensuring the fitness of an individual operating a commercial motor vehicle," and the FMCSA failed to consult with the states in this case. 

Second, the final rule was issued on an emergency basis without notice and comment, and the court ruled the FMCSA failed to meet the narrow conditions for issuing a final rule under that "good cause" exception using potential harm to public safety as a justification.

Third, the court held the FMCSA's final rule was arbitrary and capricious because the FMCSA's own data shows that non-domiciled CDL holders, who would be excluded from holding a CDL under the rule, have a lower fatal accident rate than those who would not be excluded. In addition, the FMCSA failed to adequately consider the serious reliance interests of those individuals who currently hold a CDL but would be excluded under this rule (i.e., they are relying on the availability of a CDL to pursue their livelihoods).

The court also found the petitioners will suffer irreparable injury if the rule went into effect, and the FMCSA would not suffer any such injury. Finally, the court noted that the public interest favored a stay because there is no public interest in having an agency impose an illegal act.

Although this is a preliminary decision that imposes a stay while the case is under consideration, it is a strong statement that the court will ultimately rule against the FMCSA and will strike down the non-domicile CDL rule.

At the very least, while the case is pending, states will not be required to downgrade CDLs or CLPs under the provisions of the FMCSA's interim final rule. If the rule is ultimately struck down by the court of appeals, the FMCSA could go back and attempt to reimpose a new rule, but it would require the agency to:

(a) consult with the states;
(b) go through notice and comment rulemaking; and
(c) make a stronger argument that non-domiciled drivers holding CDLs pose a greater safety risk than the general CDL driver population.

This is not an impossible standard to meet, but it would require the FMCSA to make a more compelling argument than they have demonstrated so far.