Unless you live in a cave, you know there is a new game in Washington D.C. With the Biden administration ushering a new era in our nation’s capital, expect big changes in the transportation sector. Indeed, some of those changes are already here. With Democrats in charge, we will likely see a tilt back towards regulation.
That’s why we wanted to take a deeper look at how the transportation sector may see changes. Whether it be through direct legislation or executive action, what can trucking companies expect from our new government?
From the White House
Presidents of modern generations have used executive actions to great effect. And the Biden administration is no exception. In fact, they have wielded the power of the executive pen more than just about any other, having already issued over 50, with 32 coming in their first month. Many times, executive orders and administrative reviews are designed to undo “midnight regulations” passed in the waning days of a previous administration.
New administrations use regulatory reviews to put executive actions on pause until they can be permanently eliminated. One of the big regulatory changes has been Biden undoing the Trump administration’s rule of getting rid of two regulations for every new one proposed. There has also been a change to the criteria by which the White House considers new executive actions and administrative reviews.
We have a good idea already what direction the Biden administration will go in where transportation is concerned. Pete Buttigieg, the new Secretary of Transportation, has already stated during his Senate confirmation hearing that “safety is the foundation of the department’s mission.” What will this mean in real life? Likely more regulation. But it is important to keep in mind that the White House is not the only place where trucking regulations are born. Look across to Capitol Hill for the other building.
Congressional Reviews and Legislation
Congress also wields the power of a pen. One way that the trucking industry can be impacted is through the Congressional Review Act (CRA) states that Congress can eliminate an agency rule if it was published in the Federal Register within 60 days of a new administration. Even more, all it requires is a simple majority, so it cannot be thwarted using a filibuster.
As a result, expect some of the Trump administration’s final transportation rules to be in the Congress’ crosshairs. Rules that could wind up on the chopping block include the new independent contractor definition and the FMCSA’s agricultural commodities rule as it relates to HOS exemptions. With Democrats in charge and talk of ending the legislative filibuster, who knows which way this could go.
Another area of concern is legislation. But this also could be an area of opportunity. Both the White House and Congress have been chomping at the bit to get a big infrastructure deal done. But will it get done, is the question. There has been little appetite for bipartisanship in Washington D.C., with just about any idea going through a partisan wrecking machine.
What Replaces the Fuel Tax?
The big question around infrastructure legislation remains the fuel tax. This is another area where Secretary Buttigieg has already provided his thoughts on the matter. During a virtual keynote address at the American Association of State Highway and Transportation Officials’ annual Washington Briefing, Secretary Buttigieg said that the Biden administration does not see the fuel tax as a long-term solution.
Instead, it is likely the federal government under this administration will pursue a road usage assessment as a viable alternative. In a zero emissions future, the fuel tax will be practically useless. With California already mandating electric vehicles and the Biden administration announcing government fleets will go green, there isn’t much time to come up with an alternative.
In further statements during the briefing, Secretary Buttigieg said his department would remain open minded. He stated his intent to work with transportation companies, government agencies, and advocacy group in crafting policies that made sense for everyone.
A U.S.-Canada partnership has also been announced, with Secretary Buttigieg recently releasing a joint statement with the Canadian Transport Minister to cooperate on using the power of their agencies to advance climate policy goals. In fact, they recently released a joint road map called the Roadmap for Renewed U.S.-Canada Partnership.
In its initial statement, the two ministers state that the roadmap “creates a partnership on climate change, advances global health security, bolsters cooperation on defense and security, and it reaffirms a shared commitment to diversity, equity, and justice.” With both nations now more aligned politically, you may very well see increased regulatory action on both sides of the border in the coming years. Yet, we all know politics is a fickle animal. Nothing lasts forever.
A Different DOT
One notable comment during the briefing came when Secretary Buttigieg discussed sustainability. It is no secret that the Biden administration is going to take a decidedly different approach to climate change, and this approach will propagate through government agencies. Buttigieg said “We know that the transportation sector is the largest source of greenhouse gas emissions.”
He went on to lay out what that actually means in saying the transportations sector needs “to create a network that meets the less pollution, that is more resilient for the challenges that climate change is already laying at our feet,” he said.
“And we’ve got to take the opportunity to transform our deteriorating infrastructure into a 21st-century system that creates more of those opportunities and accelerates equitable growth, and critically increases the global competitiveness of our country at a moment when there’s no time to lose,” he concluded.
What will this translate to from a policy perspective? Many fleet managers and trucking industry experts are expecting the regulatory pendulum to take another swing back to the left – if you will – with more regulations. Whether those regulations are weighted towards trucking companies or workers remains an open question, though Democrats typically favor workers in legislation.
What’s the Regulatory Picture?
Consider that the DOT and other agencies can regulate outside of legislation. Although promulgating regulations must be approved by the White House Office of Management and Budget, the direction of regulatory movement is influenced by whomever occupies the White House at any given moment.
When regulations are not yet in the final publication phase, but are in the proposal and comment period, the agency in question can simply discard the rule. One such example of a regulation that could be axed under this method is the yard move rule, which was just proposed over a month ago.
The problem is that the FMCSA does not currently have an administrator. While there is a deputy administrator currently in charge, major rule changes and proposals won’t be expected until and administrator is confirmed.
The Biden administration has signaled that it may used regulations to advance policy goals. In a January 20 order titled “Modernizing Regulatory Review,” it used the following language:
“[Agency] recommendations should provide concrete suggestions on how the regulatory review process can promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations. The recommendations should also include proposals that would ensure that regulatory review serves as a tool to affirmatively promote regulations that advance these values.”
The problem here is that many of these factors cannot be quantified numerically. If part of a regulatory process includes agencies comparing the cost of a technology against more of a human value, people will rarely win.
Trucking policy issues will likely be in the crosshairs of Biden administration regulators. Everything from speed limiters to fuel efficiency standards, hair testing, and more. Still, no one knows how far the pendulum will swing. Will the regulatory environment in 2021 favor the trucking industry? Only time will tell.