Facing a deadline to finalize regulations before President-elect Trump takes office on January 20, 2017, the White House's Office of Management and Budget has cleared a final rule to require that new applicants for Class A and Class B commercial driver's licenses (CDLs) first undergo at least a certain amount of behind-the-wheel training.
The Obama administration's efforts could be for naught, however, due to a law Congress adopted 20 years ago to provide greater Congressional oversight over regulations.
The rule proposed in March by the Federal Motor Carrier Safety Administration would require 30 hours of such training for a Class A CDL and 15 hours for a Class B CDL. Proof of such training also would be required if an existing CDL driver wanted to upgrade from Class B to Class A or obtain a hazardous materials, passenger or school bus endorsement. Moreover, drivers who have lost their CDLs through disqualification would have to show that they have had the minimum training before applying for reinstatement.
As is typical when a president of the other party takes over, the new Trump administration is expected to use a tactic known as a regulatory moratorium to suspend and potentially reverse regulations that the new president's team does not agree with. However, as long as a regulation takes effect before Inauguration Day, the new presidential administration cannot overturn so easily regulations it does not like. Normally, it would need to go through the same notice-and-comment process that was required for the rule in the first place.
The problem facing the Obama administration is that the entry-level driver training rule is is a "major" regulation, meaning that it has an annual impact on the economy of at least $100 million. The effective date on major rules must be at least 60 calendar days beyond the publication date to give Congress time to review them. So unless FMCSA is able to publish the rule by November 21 – two working days from today – it will miss the all-important deadline. Such a task isn't impossible, but it is a tall order.
Congress could still act
Ultimately, even if FMCSA can squeeze the rule in before the deadline it might not matter much. Under the Congressional Review Act (CRA), Congress has 60 legislative days to pass a resolution of disapproval over any new major regulation. The CRA has rarely been used because the resolution of disapproval could be vetoed by the president, who obviously would do so since usually his own administration issued the rule. In practice, the CRA would work only in the rare situation we face now: A new party takes over the White House, and the same party controls both houses of Congress. Only once in the CRA's 20 years has it been used successfully to strike down a regulation -- a Clinton administration ergonomics rule that was rejected by Congress and new President Bush.
Congress has plenty of time beyond Trump's inauguration to disapprove the rule. In fact, because Congress has taken so many extended breaks this year, a CRA disapproval regulation could cover major regulations issued during the second half of 2016. (That could include, for example, the new greenhouse gas/fuel efficiency rules that the Environmental Protection Agency adopted on medium- and heavy-duty trucks.)
Rule's fate could be decided in days
Of course, all of this assumes that the Trump administration and the Republican Congress would not support the entry-level training rule. Assuming FMCSA misses the deadline to protect the rule from a regulatory moratorium, at least a temporary stay of the rule is likely until the new administration has time to assess it. If that happens, given opposition within the the rule likely will simply fade away.
Certainly, there are some arguments in favor of the new leadership accepting the regulation. For starters, Congress – including a Republican-controlled House – mandated a rule in the 2012 legislation known as MAP-21. Also, the rule is a product of a negotiated rulemaking among stakeholders who generally signed off on a document that was used as the basis of the proposed rule.
Despite the advisory committee's recommendations, some industry organizations signed off on the negotiated framework only to avoid a potentially much more burdensome rule, such as the one the Obama administration initially proposed several years ago. Moreover, there remains strong industry opposition to key aspects of the rule. The American Trucking Associations dissented from the advisory committee's most important recommendation: A mandatory minimum number of hours spent in behind-the-wheel training. In comments on the proposed rule, ATA reaffirmed that it strongly opposes a minimum number of hours for behind-the-wheel training.
If FMCSA makes the deadline for avoiding a regulatory moratorium, the question then becomes whether opposition to the rule in Congress is strong enough for legislators to go on record opposing minimum training standards for new truck drivers. That could be a tough stance for a lawmaker to take, especially given how small the Republican margin is in the Senate.
For an analysis of how other FMCSA regulations might fare in the Trump administration, click here.