Lawsuit Update
FMCSA ‘missed the boat’ on driver training issue

By Coral Beach
Staff Editor

By contending that its driver-training rule does not need to require any actual training behind the wheel, the FMCSA ignored its own evidence, according to OOIDA’s legal team.

The argument from the Federal Motor Carrier Safety Administration was in response to a suit OOIDA filed in the U.S. Court of Appeals along with two other organizations – the United Motorcoach Association and the Advocates for Highway and Auto Safety.

The three groups want the court to order FMCSA to go back to the drawing board and develop an entry-level driver-training rule that requires training in how to actually drive a commercial motor vehicle.

In their response, FMCSA officials said the training rule was only one part of a six-part strategy to improve safety on America’s highways. However, none of the other five parts include any actual training of drivers. The FMCSA officials also contend that all federal agencies have discretion in implementing solutions to problems under their jurisdiction.

“They missed the boat with that,” said attorney Paul Cullen Jr. of The Cullen Law Firm in Washington, DC.

“It is true that under its administrative duties an agency can address issues in many ways, but Congress didn’t say ‘under your administrative duties.’ ”

OOIDA made that very point June 6 in its rebuttal to the FMCSA’s response by citing the specific mandate from Congress regarding the entry-level driver-training rule.

In 1991, Congress included the training mandate in legislation known as ISTEA, the Intermodal Surface Transportation Efficiency Act. The mandate gave the feds 24 months to come up with a training rule.

Thirteen years later, in May 2004, the FMCSA published its driver-training rule. It requires a total of 10 hours of training on four non-driving topics: driver qualifications; hours of service; driver wellness; and whistleblower protection.

That rule is just not acceptable, said OOIDA President Jim Johnston.

“We want the court to kick the rule back to DOT, similar to what happened with the HOS rule,” Johnston said during a roundtable discussion on the new XM Radio show, “Land Line Now,” on the day after the association filed its rebuttal to FMCSA.

And in addition to the goal of increasing safety – which was the reason Congress gave for ordering the training rule – Johnston said there is another key issue related to driver training that has an impact on every trucker on the road.

“It’s not just about safety,” Johnston said, “it gets down to job value and self value.

“You can suppress people’s expectations by diminishing the value of their occupation. How often do you hear drivers say, ‘I’m just a truck driver.’ ”

Johnston said big businesses in the trucking industry are opposed to mandatory driver training because, they say, it would be too expensive. That attitude is insulting to truckers because it suggests their jobs are so simple that training wouldn’t be worth the cost.

Johnston said the cost argument is also flawed because the carriers aren’t the ones who pay for the training anyway.

“The industry doesn’t pay for training now – the drivers do, the feds do, the public does,” Johnston said. “Besides, what’s the cost of no training?”

That question goes to the heart of another of OOIDA’s points in its rebuttal: FMCSA ignored its own evidence, including a cost-benefit analysis, when it wrote the training rule.

“The agency can’t ignore the evidence in the record,” Cullen said.

That evidence shows that 69 percent of drivers are not adequately trained in how to actually operate a commercial motor vehicle. It also includes a cost-benefit analysis that shows increased training behind the wheel would save more money than it would cost in the long run.

Besides ignoring that evidence, Johnston said that FMCSA failed to present any evidence that its driver-training rule would actually do what Congress wanted – increase safety.

The next step in the legal action is for the three-judge panel of the Appeals Court to set a date to hear oral arguments. Cullen said he expects that to happen some time this fall, with each side likely having an hour or less to present its case.