Deregulatory Announcements at the U.S. Department of Transportation: A Sign of Bigger Things to Come?

On May 29, the U.S. Department of Transportation announced more than 50 deregulatory actions at the three operating administrations of the department that focus on road transportation: the Federal Highway Administration (FHWA), Federal Motor Carrier Safety Administration (FMCSA), and National Highway Traffic Safety Administration (NHTSA). The Secretary of Transportation was quoted as saying, “my department is slashing duplicative and outdated regulations that are unnecessarily burdensome, waste taxpayer dollars, and fail to ensure safety.”

Ultimately these actions are notable less for their substantive impact than for their signal that the current administration wants to be seen as aggressively pursuing deregulation. They may also open the door to some new regulation, pursuant to the “10-to-1” requirement in Executive Order 14192.

The NHTSA Deregulatory Actions

Sixteen of the announced deregulatory actions came from NHTSA. Twelve of those 16 propose to remove “obsolete” language from the Federal Motor Vehicle Safety Standards (FMVSS). Two of them propose removing language from other procedural regulatory requirements. One withdraws a pending proposed rulemaking. One proposes technical amendments to several related FMVSS.

One of the proposals would eliminate FMVSS No. 205(a), which regulates glazing equipment on motor vehicles “to reduce injuries resulting from impact to glazing surfaces, to ensure a necessary degree of transparency in motor vehicle windows for driver visibility, and to minimize the possibility of occupants being thrown through the vehicle windows in collisions.” However, no vehicle or equipment manufactured in almost two decades has been subject to FMVSS 205(a) ever since it was replaced by the separate standard established in FMVSS No. 205. FMVSS No. 205(a) applies only to “glazing equipment manufactured before September 1, 2006” and “motor vehicles manufactured before November 1, 2006 and … replacement glazing for those vehicles.” All vehicles and glazing equipment manufactured after those 2006 dates are covered by the newer standard.

Similarly, NHTSA proposed to eliminate FMVSS No. 216, which “establishes strength requirements for the passenger compartment roof” of passenger cars and certain other vehicles. But that FMVSS was functionally replaced by FMVSS No. 216a, which was published in 2009 and applied to all covered vehicles starting in model year 2016.

NHTSA also withdrew a pending rulemaking proposal to make technical changes to the existing FMVSS No. 218, which regulates motorcycle helmets. The proposal was published in May 2015 and the comment period closed two months later. In the decade since, NHTSA has not finalized the rule. So the withdrawal of the proposal removed no existing requirements.

One of the non-FMVSS proposals from NHTSA would eliminate more than 10,000 words of regulatory language that established procedures under the Consumer Assistance to Recycle and Save Act of 2009. That law subsidized the purchase or lease of a new vehicle when an owner traded in an old, less fuel-efficient vehicle. However, the trade-in subsidy program expired several months after the law was enacted, and the new proposal simply seeks to “remove obsolete regulatory procedures related to the Consumer Assistance to Recycle and Save Act of 2009, because that program has ended.” Again, the regulation to be eliminated has had no effect on anyone for more than 15 years.

In what is likely the most meaningful deregulatory step announced by the agency, NHTSA proposed several changes to the FMVSS that apply to child car seats. Specifically, the amendments would (1) exclude school buses from certain equipment and labeling requirements, (2) delay the compliance date of one standard by about 16 months, and (3) change the use of a crash test dummy in compliance tests.

The regulatory changes at FHWA and FMCSA similarly focus on “obsolete” rules. One FHWA proposal, for example, would remove regulations that apply to the construction of bridges over dams — but as the Department noted, “Congress has not appropriated funding for such bridges in decades.”

Takeaways

The recent announcements follow the department’s request for information in April seeking guidance on regulatory rollbacks. More than 900 commenters responded to that request. Whether more substantial easing of regulatory burdens is in the offing remains to be seen.

The department and its operating components may also contemplate leveraging these recent changes to issue new regulations. Executive Order 14192 provides that “whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least 10 existing regulations to be repealed.” It also dictates that “any new incremental costs associated with new regulations shall … be offset by the elimination of existing costs associated with at least 10 prior regulations.” The Office of Management and Budget guidance to agencies on this executive order likewise explains that “at least 10 … deregulatory actions” must be been taken “per single … regulatory action and that the incremental cost of the … regulatory action” must be “appropriately counterbalanced by incremental cost savings from [the] deregulatory actions.” However, because most of the announced proposals would eliminate regulatory language that imposes little or no ongoing costs, it is unclear how much ground they pave for new regulations.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.