- Avery Vise
Did FMCSA's shift save the driver training rule?
The Federal Motor Carrier Safety Administration's final rules rarely differ dramatically from what the agency floated in notices of proposed rulemaking (NPRMs). Often, major rules contain a few minor concessions that seem aimed mostly at making it look like the agency actually read public comments and at defending the rule in potential litigation against claims that it is "arbitrary and capricious."
FMCSA's new rule setting minimum training standards for entry-level drivers (as well as those seeking upgrades and certain endorsements) is an exception to the norm. Responding to what was by far the the biggest complaint carriers had with the proposal, FMCSA dropped a plan to require a minimum of 30 hours' behind-the-wheel (BTW) training for Class A commercial driver's license (CDL) applicants and 15 hours' BTW training for Class B CDL applicants. Another significant change was dropping the planned requirement that drivers who lost their CDLs to disqualification take refresher courses.
Although compliance with the rule doesn't kick in until 2020, the rule itself takes effect February 7, 2017. That means that President Trump, who will be inaugurated on January 20, could delay or reject the rule using a tactic called a "regulatory moratorium." And even if that didn't happen, Congress could pass a resolution of disapproval under the Congressional Review Act. The big question is whether either of these actions will occur.
An uncertain payoff, per FMCSA itself
Certainly, there remain some solid reasons to fault the rule. Perhaps most of all is the cost-benefit analysis, which is unconventional at best. The agency sees only modest costs – about $20 million a year total – for motor carriers. More than 90% of the projected annual $366 million costs would be borne by the entry-level drivers themselves, presumably due mostly to more expensive training programs.
Of course, it's reasonable to assume that if CDL training becomes more expensive, fewer drivers will go through it – at least if they have to pay it. So surely carriers will face higher costs, either through implementing their own compliant training programs or through higher recruiting costs due to a slower stream of new blood. Is $20 million a year enough to cover those costs for the entire industry? Doubtful.
But it's on the benefits side that the driver training rule departs most what we normally see. As with the proposed rule on speed limiters, much of the benefits from the rule are not in safety. In this case, FMCSA attributes all the quantifiable benefits to improved fuel efficiency, reduced greenhouse gases and lower maintenance and repair costs due to drivers who are better trained. (The mere mention of greenhouse gas reduction as one of the benefits might be enough to give some Republican lawmakers heartburn.)
Accepting fuel efficiency as a benefit raises a question similar to one raised in the speed limiter proposal. If drivers slow down, they might save fuel but they also might lengthen their delivery times, which incurs a cost. FMCSA finessed this point by adding language recommended by the White House Office of Management and Budget. The agency said it "does not believe that the training in fuel efficient practices addressed by this rule will contribute to measurably longer trip times, as the curricula focus on factors such as maintaining safe distances between vehicles and avoiding hard acceleration and braking, rather than reducing vehicle speed."
OK, FMCSA dodged that bullet, but what about safety? "The lack of data directly linking training to improvements in safety outcomes, such as reduced crash frequency or severity, posed a challenge to the Agency," FMCSA conceded. Instead, the agency calculated what reduction in crashes by entry-level drivers would be needed in order to have the rule be cost-neutral. The reduction comes to 3.61%, which FMCSA implicitly views as achievable since it issued the rule, though it did not specifically say so.
Consensus and public perception
Although the driver training rule relies on the very kind of fuzzy math that infuriates many pro-business interests, there are some significant factors that support keeping the regulation. The rule is the product of a negotiated rulemaking among various stakeholders, and the final version is even closer to the trucking industry's position than the proposed rule was. The American Trucking Associations is on record as supporting the final rule.
It's worth noting also that the final rule is far less onerous than the rule proposed in December 2007 during the Bush administration. That rule would have required 120 hours of training – 76 hours in the classroom and 44 hours behind the wheel – for a Class A CDL.
Perhaps more important are the politics. Are the Trump administration and especially members of Congress prepared for the negative publicity that could follow from rejecting the first minimum training standards ever adopted for CDL drivers? The Trump administration might not get too much grief it it shelves the rule as part of a regulatory moratorium, but actually voting on a resolution of disapproval would be a brave stance even for a Republican lawmaker.
Time to accept and move on
The entry-level driver training issue has been around for a quarter of a century. In 1991, Congress ordered a study and rulemaking on the issue. The study took years longer than it was supposed to, and then nothing happened until 2002 when safety advocacy groups sued to force FMCSA to issue at rule. The Department of Transportation settled by agreeing to publish a rule, but when it did so in May 2004, the groups sued again, arguing the rule was inadequate.
The 2004 rule required no behind-the-wheel driver training at all but rather mandated just classroom training in four areas: medical qualification and drug and alcohol testing, hours-of-service rules, and wellness and whistleblower protection. In late 2005, the U.S. Court of Appeals for the District of Columbia Circuit agreed with the safety groups and ordered another rule. But in a bit of an insult to FMCSA, the court did not invalidate the 2004, saying that the rule "while plainly inadequate, may do some good, if it does anything at all."
FMCSA came back with the proposed minimum of 120 hours of training noted earlier, and the industry said no way. Once again, nothing really happened for several years. Then Congress in 2012 ordered a final rule by a final rule by October 1, 2013 – a date FMCSA ultimately missed by more than three years.
In the end, FMCSA decided it could resolve the issue satisfactorily only by having all stakeholders sign off on a plan through the Entry-Level Driver Training Advisory Committee, which they generally did, and FMCSA proposed a new rule in March of this year. However the requirement for a minimum number of hours in behind-the-wheel training remained controversial.
After 25 years, it's time to put the issue of minimum training standards for entry-level drivers to rest. As a matter of public perception and politics it's hard to argue that minimum standard are unnecessary, and with FMCSA's concessions, the final rule should remain in place.
Avery Vise is president of TransComply and a longtime analyst and editor who has covered regulation and legislation in the trucking industry for nearly 20 years. MORE COMMENTARY FROM TRANSCOMPLY