The Federal Motor Carrier Safety Administration (FMCSA) has proposed employing the negotiated rulemaking process in hopes of finding a solution to its long-proposed concept of entry-level driver training. What is this process, and is it a good thing?
FMCSA first issued a notice of proposed rulemaking (NPRM) on this issue on Dec. 26, 2007. That NPRM included a proposal to ”revise the standards for mandatory training requirements for entry-level operators of commercial motor vehicles in interstate operations who are required to possess a commercial driver’s license (CDL).”
On Sept. 19, 2013, FMCSA withdrew the 2007 NPRM because “commenters to the NPRM, and participants in the Agency’s public listening session in 2013, raised substantive issues which have led the Agency to conclude that it would be inappropriate to move forward with a final rule based on the proposal.”
The 2013 withdrawal notice goes on to recognize that FMCSA also received direction from Congress in Section 32304 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), the multi-year transportation reauthorization bill. MAP-21 directed FMCSA to issue a final rule within one year establishing minimum entry-level training requirements for an individual operating a commercial motor vehicle addressing knowledge and skill through classroom and behind-the-wheel training, with a focus on passengers and hazardous materials.
This directive would affect all entry-level drivers of commercial motor vehicles, including school buses, motorcoaches and trucks. Obviously, this is a complicated issue, and it is relatively easy to see why FMCSA has struggled with a one-size-fits-all solution. In hopes of finding a solution, on Dec. 10, 2014, FMCSA issued notice of its intent to form a negotiated rulemaking committee to develop proposed regulations on this issue.
In a negotiated rulemaking, an agency invites representatives of interested parties that are likely to be affected by a regulation to join them on a negotiating committee to develop a consensus draft of a proposal rule. The theory is that if the parties can agree, then everyone else affected by the rule will likely agree. If consensus is reached, the agency publishes the proposal for public comment under the usual regulatory procedures.
Obviously there is risk associated with this, as any solution will involve compromise, but having a seat at the table to discuss and negotiate this issue is critical.
For example, the National School Transportation Association (NSTA) was involved in the Federal Transit Administration (FTA)’s charter bus negotiated rulemaking committee, which began in December 2005 and was completed in December 2006. Federal law has prohibited provision of charter service by federally funded public transit agencies since 1973, but the rules had not been significantly revised since the 1980s. In addition, FTA decisions had been decentralized to regional offices, resulting in a patchwork of contradicting decisions. Congress directed FTA to enter into a negotiated rulemaking proceeding to resolve the issue.
Committee members included 21 organizations and FTA, including representatives of federal, state and local governments; private bus operators; private school bus contractors; urban and rural public transit operators; and transit labor. Negotiations occurred between May 8 and Dec. 7, 2006, and included six two-day meetings.
Much work was also done by smaller groups between those meetings. As agreements were reached by the committee, FTA drafted regulatory language for committee review. When no agreements were reached, FTA drafted regulatory language to reflect the options under discussion.
The committee reached agreement on about 80% of the rule. While compromise was involved to reach agreement on the majority of the issues, the system in place today is much better than it was, and it is working. Thanks to that effort, private operators now have an easy way to register to receive notices of charter work, clarity on several limited exceptions for when public transit systems can provide charter work, greater accountability and stronger enforcement for violators.
NSTA is pleased that FMCSA will use this process to resolve the entry-level driver training issue, and the association intends to be actively involved in the work of the committee. By being part of the conversation, we ensure that the unique characteristics of school bus operations are understood and that the ultimate solution will work for our industry.
Appropriate driver training is critical to the strong safety record of school bus transportation. While participating in a negotiated rulemaking proceeding requires investing time and resources, the process will result in a good thing for the industry.