Whenever there’s a change in the White House or a change in the power balance in the Capitol, as we've seen with Democrats narrowly taking control of both houses of Congress, trucking can expect to see changes in laws and regulations affecting its operations. But how that happens isn't just like the Schoolhouse Rock version of "I'm Just a Bill."
There are several mechanisms by which we can expect changes that will affect trucking under the new Biden administration and the new Congress:
1. Administrative Review
Executive orders in a new president’s first weeks in office are “the normal course of business anytime there’s a new administration,” Heller said, and one of the first ones is often to undo “midnight regulations” passed in the waning days of the previous administration. A regulatory review puts those on pause until the new administration can review them and decide if it wants to go forward with the new rule or not.
In addition, one of former President Trump’s early orders was to discard two regulations for each new one an agency proposed. President Biden has undone that mandate, and also has changed the criteria by which the White House evaluates regulations.
2. Congressional Review
The Congressional Review Act, or CRA, states that Congress can eliminate an agency rule that was published in the Federal Register within 60 days of the administration change. It requires a simple majority. Rules that could be negated under the CRA are the Department of Labor’s new independent contractor definition, as well as the Federal Motor Carrier Safety Administration’s definition of agricultural commodities as it relates to hours-of-service exemptions.
3. New Legislation in Congress
One of the top priorities of both the Biden administration and the trucking industry is infrastructure. New Secretary of Transportation Pete Buttigieg said during his confirmation hearing, “The time is now for infrastructure investment.” However, how to pay for that is the big question, and alternatives to the traditional fuel tax, such as a vehicle-miles-traveled tax, are on the table.
In addition, it’s likely that any big infrastructure bill will be a vehicle for any number of “safety titles” affecting trucking. Last year’s House bill, the INVEST in America Act, did not make it into law, but it does give us insight into the types of issues we likely will see in a bill in this new Democratic-controlled Congress, such as higher insurance minimums and truck speed limiters.
And, of course, new stand-alone bills may be introduced that could address these issues and others.
4. New and Proposed Regulations
The FMCSA and other agencies have the power to promulgate regulations outside of what has been mandated by legislation, although they must be approved by the White House Office of Management and Budget.
For regulations that have not yet made the final publication stage but are still in the proposal and comment period, we’ll have to wait and see how the agency under the new administration will proceed with those, or whether they may be discarded altogether. One example is the proposed definition of “yard move,” proposed just last month.
Currently FMCSA does not have an administrator, although the Biden Administration did name a deputy administrator who will essentially be acting administrator until that position is filled. Heller pointed out that under the Trump administration, Ray Martinez was not confirmed until nine months into the administration. However, DOT is up and running, and there are still plenty of career people at the agency not subject to political appointment.