Will The Trump Administration Drain the Regulatory Swamp Affecting Trucking?
By Dave Osiecki, President, Scopelitis Transportation Consulting, LLC
Over the coming days and weeks, dozens of industries will be trying to answer the question of how the regulatory agenda will change under President Trump. No doubt it will change, and certain industries are likely to see bigger shifts than others. But those in trucking, from professional drivers to small and large fleet owners alike, will be wondering how the robust regulatory agenda pursued under President Obama will change. They will also be anxious to see how long it will take to change.
Let’s start with timing…that is, how long will it take. The short answer is, some change will be seen soon and some quite a bit later. The change we might see quickly is likely by way of a freeze on regulations that are in process but not yet implemented. Changes that will take more time are those that proactively provide remedies, incentives or safe harbors designed to stimulate business activity.
If President Trump follows through on his campaign promise to provide “regulatory relief,” he will likely issue a temporary regulatory ‘moratorium’ his first week in the White House. While the breadth and scope of such a moratorium is uncertain at this point, it could mean that any regulation published by the Obama Administration that’s not yet effective, would be reviewed and scrutinized by the President’s new team. A determination would likely be made on whether those rules should go forward and become effective, or whether they should be withdrawn. More on this later as it relates to electronic logging devices and the recent large truck fuel efficiency rules. A temporary moratorium is even more likely to mean that ongoing agency work on final regulations not yet published, or recently published proposed rules, will slow, or come to a complete halt, until a determination can be made whether those rules align with Trump Administration policy. It’s a safe bet that some (perhaps much?) of that regulatory work will be at odds with Trump Administration policy, and will find the cutting room (i.e., government cubicle) floor. These decisions will take time, perhaps many months until Department and Agency heads are nominated, confirmed by the Senate and in place. Recent news reports estimate 4,000 new Trump appointees must be put in place, with approximately 1,000 requiring some type of congressional approval. For many industries, including trucking, the review time itself under a moratorium will provide relief.
Turning to how the substance of the trucking regulatory agenda might change, let’s start with two rules of importance: electronic logging devices and new fuel economy standards for large trucks. On electronic logging, while the compliance date was set by the Obama Administration for December 2017, technically speaking the ELD rule has been effective since February of 2016. This effective date—established for ELD vendors to begin certifying their devices–coupled with the fact that Congress mandated the ELD rule and a federal Court of Appeals recently upheld it, likely means that it will not be affected by a Trump-initiated moratorium. The same could be true for the recently issued large truck ‘phase 2’ fuel efficiency standards, a key component of President Obama’s climate change action plan, although this rule was not congressionally directed. EPA and NHTSA established an effective date of late December 2016, which may keep President Trump from slowing or outright reversing it, but the outcome on this is probably less certain than the ELD rule.
A Trump Administration moratorium is, however, very likely to affect the progress or future of other trucking rules in the pipeline. Below is a short list of some of the more prominent or controversial trucking-related rules that will likely be snagged in the moratorium net, and either slowed or perhaps even withdrawn:
- Carrier Safety Fitness Determinations (using the CSA system) – published as a proposed rule in January 2016;
- Obstructive Sleep Apnea – published as an advance notice of proposed rule in March 2016;
- Speed Limiting Devices – published as a proposed rule in September 2016;
- National Drug & Alcohol Test Results Clearinghouse – final rule recently cleared White House-OMB review by the Obama Administration, but not yet published;
- Entry Level Driver Training Standards – final rule currently undergoing White House-OMB review by the Obama Administration, and not yet published;
- Financial Responsibility for Carriers, Forwarders and Brokers – published as an advance notice of proposed rule in late 2014, and awaiting further regulatory action.
President-Elect Trump certainly won’t be the first President to impose a temporary regulatory moratorium. But, if his regulatory relief actions match his campaign promises, the number and type of regulations affecting trucking over the next four years is likely to be very different than that of the last 8 years.