Washington Roundup: To Regulate or Not?

On July 26, 2022, the Court of Appeals for the District of Columbia sided with FMCSA on its dispute with Advocates for Highway and Auto Safety, et. al, saying FMCSA properly justify its September 2020 Hours of Service changes. That’s good news for electronic logging device vendors and the motor carrier industry alike.

The ruling was not too surprising as administrative courts have traditionally offered deference to the regulating agency, provided they offer strong justifications for their decisions. Recent decisions by the Supreme Court, however, may point to a new paradigm emerging.

In West Virginia vs. EPA, SCOTUS found that EPA overstepped its authority in creating emissions caps not because it failed to justify its decision, but because Congress hadn't provided specific direction to issue the rule. SCOTUS came to a similar conclusion when it struck down the OSHA mask mandate this Spring, saying that OSHA had overstepped its authority. Some have referred to this as a new front on efforts to control the "administrative state."

Rulemaking

But could this logic apply to motor carrier safety regulations? Maybe. After all, in promulgating the Hours-of-Service rules, FMCSA relies, in part, on a congressional directive to ensure “the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators” which falls short of prescriptive instructions to driver hours.

Many other FMCSA rulemakings rely on the somewhat ambiguous authority delegated to it in the Motor Carrier Safety Improvement Act of 1999 as well as legacy laws like the Motor Carrier Acts of 1935 and 1984 which authorize rules "on the safety of operations and equipment". . . "when needed to promote safety of operations." While this vague authorization could be interpreted as wide latitude to promulgate rules to improve motor carrier and driver safety, and these broad authorities certainly point the federal government as in charge of safety. the recent SCOTUS decisions may foreshadow a more narrowly interpreted authority in the future.

The difference here may be that safety is a shared mission of the industry and regulators and that the industry is, at times, leading in the safety space because its moral and economic interests are aligned to reduce crashes. While, to date, FMCSA has succeeded in setting a baseline for safety and compliance, technology is speeding ahead, solving new safety problems, and accelerating behavioral change with data and artificial intelligence.

What’s Next?

The next frontier is how to address technological advancements like ADAS and AV technologies. Establishing the proper balance between what must be regulated and what can be left to the industry is critically important for safety and innovation. In this new frontier, regulators may choose to cede its pole position in favor of monitoring progress and gathering industry consensus.

While the "administrative state" may be under fire, our shared mission may help build mutual trust and allow the industry to continue to innovate. The industry will need some help along the way, however, and for that, it will need some guidance and direction from the "administrative state."