UPDATED. Thanks to a “Regulatory Freeze Pending Review” issued by the White House on Jan. 20, the Federal Motor Carrier Safety Administration has “temporarily delayed” the effective date of its final rule on minimum entry-level CDL training requirements until March 21.
However, while the rule’s effective date has been extended, the agency did not adjust the rule’s all-important compliance date— which remains Feb. 7, 2020. In practical terms, that means this delay is only a move on paper.
On the other hand, the notice goes on to point out that FMCSA “may consider delaying the effective date of the above referenced regulation beyond March 21, 2017, consistent with the memorandum of the Assistant to the President and Chief of Staff.” So, there could be another delay announced after this one— or not.
The agency explained that the “freeze” memorandum, issued by President Trump’s Chief of Staff Reince Priebus, directed agencies to temporarily postpone for 60 days from the date of the memo, the effective dates of certain regulations that had been published in the Federal Register, but had not yet taken effect.
“Because the original effective date of the final rule published on December 8, 2016, falls within that 60-day window, the effective date of the rule is delayed until March 21, 2017,” FMCSA stated.
Avery Vise, president of compliance consultancy TransComply, told HDT that in his view "the one thing we can take from FMCSA's response to the Priebus memo is that by delaying the effective date, DOT and FMCSA must believe they have discretion to discard the rule if they find it raises 'substantial questions of law or policy.'"
The rule was mandated by Congress under the MAP-21 highway bill, passed in 2012. FMSCA said the rule was based, in part, on recommendations of the agency’s Entry-Level Driver Training Advisory Committee, a negotiated rulemaking committee that held a series of meetings in 2015.
Although applauded by trucking interests, including the American Trucking Associations, the rule remains controversial because it does not include a requirement for 30 hours of behind-the-wheel training for new drivers, which had been included in the notice of proposed rulemaking that FMCSA issued in March, 2016.
Indeed, a petition to reconsider provisions of the rule was filed with FMCSA by Advocates for Highway and Auto Safety, the Owner-Operator Independent Drivers Association, the Truck Safety Coalition and Citizens for Reliable and Safe Highways on Dec. 21.
The petitioners wrote that they are concerned the rule will “not ensure that CDL applicants who can pass the state CDL skills test will spend any time actually operating a CMV on public roads with an experienced instructor encountering safety critical situations.”
However, in one of his last official acts as FMCSA administrator, Scott Darling denied the petition in letters to the petitioners dated Jan. 19. He rejected their argument largely on the basis that FMCSA's decision not to include the minimum behind-the-wheel requirements was "thoroughly explained" in the final rule.
"In support of your position that a minimum BTW hours requirement should be included in the final rule, you largely repeat points previously raised in your comments to the NPRM and in other public statements," Darling wrote to the petitioners. "Although you cite recent increases in the number of large truck crashes involving injuries and fatalities, you neither assert nor offer any evidence that a lack of driver training was the cause of – or even a factor in – any of those crashes."
In another wrinkle, it seems the agency has removed the electronic copies of Darling's letters to the petitioners from the official docket posted online. According to TransComply’s Vise, the denial letters had been posted at www.regulations.gov on January 25. However, he advised, “at some point since then the letters have been removed from the docket.”
Updated on Feb. 2 to include information on electronic copies of petition replies in docket.