An executive order regarding a little known White House office may result in a big change and an entirely new direction when it comes to trucking and other federal regulations.
President Biden recently signed “Modernizing Regulatory Review,” an order directed at the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget (OMB).
OIRA reviews significant regulatory actions. It gets involved when a regulatory agency, such as the Federal Motor Carrier Safety Administration, proposes a significant regulation that is expected to have: an annual effect on the economy of $100,000,000 or more; major increases in costs or prices; or a significant impact on U.S. competitiveness.
Historically, OIRA reviews the cost/benefit analysis of significant rulemakings, checks that all the regulatory procedures were properly followed, and tries to ensure consistency across federal regulatory agencies.
Under the executive order, the director of OMB will produce a set of recommendations on how the regulatory review process (OIRA’s role) can “promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.”
The executive order underscores that the regulatory review process will serve as a “tool” to “affirmatively promote regulations that advance these values.”
Regardless of whether one shares these values, advancing a societal agenda was never OIRA’s role, according to critics. In contrast, supporters of this executive order claim OIRA’s narrow economic focus, ignores social and environmental costs and benefits not easily translated into dollar amounts.
As to traditional cost/benefit reviews, the executive order directs that OIRA “fully account for regulatory benefits that are difficult or impossible to quantify,” thus helping some regulations overcome a procedural hurdle. On the other hand, OIRA is to guard against “harmful anti-regulatory or deregulatory effects.”
Some are looking at this executive order and saying a barrier has been removed against more regulation.
The executive order goes on to have OIRA ensure regulatory benefits to “disadvantaged, vulnerable, or marginalized communities” while protecting them from regulatory burdens. The order also directs OIRA to be “proactive” in partnering with regulatory agencies toward these goals.
Every administration brings its own political perspective, its own set of values. When it comes to regulations, however, the scope, direction and the limitations on federal agency powers have been set by Congress. Critics contend this move by the White House violates congressional statutes and is a move to quietly rewrite regulatory agency job descriptions.
The effects of this executive order have left some in trucking wondering about the impact on FMCSA regulatory proposals. As the speculation continues, two possible examples come to the forefront. FMCSA, hypothetically, might be encouraged by OIRA to develop motor carrier hiring guidelines which target inclusion of Similarly, FMCSA may find the cost/benefit analysis of future hours of service revisions tied to the use of environmentally-friendly electric or alternative fuel engines.
Keep in mind these are only theoretical examples. However, at some point, this executive order could result in litigation to resolve what some believe is a conflict between congressional and executive powers.