I think most can relate to the youthful world of backyard sports where any disagreement between kids is almost always relegated to the proverbial “do over.” Disagreement between safe or out? Do over. Any controversy regarding out of bounds in just about any sport? Do over. The do over is the failsafe, the opportunity to ensure that the show must go on and all is right in the world. Believe it or not, in our world of politics, even Congress has a do over, and it is called the Congressional Review Act (CRA).
Relatively speaking, the CRA can be deployed during administration changes as an oversight tool that may revert or eliminate final rules that a federal agency might have fast-tracked under a previous president. While that seems simple enough, talk surrounding the CRA always heats up after any presidential election – and this year is no different. Simply put, any member of the House or Senate can issue a joint resolution that would eliminate a final rule by any agency (think the Federal Motor Carrier Safety Administration) that was issued within the past 60 legislative days. What makes this year so unique is that both the House and Senate are controlled by Democrats, and in this day and age, partisan politics rule the roost, making it quite easy for this legislation to garner a simple majority in both houses for a presidential signature.
The significance of this action will certainly come into play this year. While Congress clearly has its hands full at the moment, many final rules that were recently issued will ultimately take their turn under the microscope. Referred to as “midnight regulations” because of their last-minute effort to get finalized, the very definition of such can be the recent final rule issued by the Department of Labor that sought to determine who is an employee and whether a worker may be classified as an independent contractor. Unfortunately, many believe that the new administration may deal a death blow to this regulation, and the ill-fated timing makes it ripe for falling victim to the CRA. The final rule was published in the Federal Register on Jan. 7.
The CRA is not the only avenue in which Congress or the incoming administration can act on rules that are in the proverbial pipeline. Often uttered this time of year is the phrase “dying on the vine.” This is used to define the progress of a rule that basically stalls out and is never implemented or never makes it to the final rule phase by virtue of the new administration’s sheer lack of interest or effort. A few specific pilot programs our industry was interested in seeing move forward may fall victim to this regulatory inaction. The proposed pilot program to evaluate the use of drivers under the age of 21 in interstate commerce and a recently proposed three-hour pause to the 14-hour clock in the hours of service (HOS) regulations may both lose the steam they once had. If there is a saving grace, it is that our industry can certainly bear witness to the fact that both are worthy of moving forward.
The under-21 driver study was promulgated to co-exist with a current study being undertaken that requires the demographic to have military training to operate a commercial vehicle. In essence, it is an add-on to glean additional information to the original program that never garnered enough participants. The three-hour pause pilot program has been derived based on the problems that have existed with the HOS regulations, which were discovered with the implementation of electronic logging devices. The reality is that both pilot programs provide opportunities to discover information that does not yet exist in order to justify positive changes to rules that would have a dramatic effect on our industry.
Luckily, the recent hours of service changes happened well before the 60-day legislative timeline, so the CRA or even die-on-the vine mentality does not pertain to those rules. As it stands now, our current HOS can only be challenged in court, or the Biden administration must undertake another round of full-scale rulemaking to reverse the flexibilities instituted under its predecessor.
As you can see, the do-over mentality is very much in play when it comes to existing rules or rules that are currently in the regulatory pipeline. Administration changes almost always go through this period of discovery when deciding whether recent rules may have been rushed through the system rather than being vetted for costs and benefits.
While we all know that the new Congress has many things on its plate right now for consideration, the aforementioned programs are not exactly as safe as we would hope them to be in the existing political climate.
