NEWS

By Stephanie Beasley

Safety rules for the auto, aviation and rail industries may never get out of the gate because of President Donald Trump’s push to cut regulations, industry and safety groups say.

Trump signed an executive order Jan. 30 that forces agencies to choose two regulations for elimination for every new rule proposed or finalized. Additionally, the order requires that all new regulations incur no additional net costs.

Industry groups are concerned that the mandate could delay emerging technologies like drones and self-driving cars, which have fewer regulations on the books. A final rule released last year that permits commercial drone flights is the only such regulation that has been issued by the Federal Aviation Administration. And there are no federal safety regulations in the works—beyond voluntary safety guidelines—for driverless cars, another significant new transportation innovation.

Drone Makers Seek Clear Path

The Small UAV Coalition, a Washington-based drone advocacy group, recently urged the administration to exempt some drone safety rules from the order. Proposed and final rules for drone flights over people, along with a proposed rule for expanding commercial drone operations, should not be held back, the group said in a Feb. 17 letter to Office of Management and Budget Director Mick Mulvaney. The regulations are not costly or significant regulatory actions, the group said.

The FAA submitted a notice of proposed rulemaking for commercial drone flights over people to the OMB last November and said it planned to release the proposal by the end of 2016. But security concerns grounded those plans. The FAA’s press office referred Bloomberg BNA to a statement that Administrator Michael Huerta made at the Consumer Electronics Show in January.

“As drone flights over people become more and more commonplace, imagine the challenge of a local police officer at a parade trying to determine which drones are properly there to photograph the festivities and which may be operated by individuals with more sinister purposes,” he said.

The postponement means the proposal is now subject to the two-for-one executive order.

Michael Drobac, executive director of the Small UAV Coalition, said that when the group met with FAA officials in recent weeks they signaled the proposal could be delayed by up to nine months. The coalition includes companies such as Amazon.com Inc., Alphabet Inc.'s Google, Intel Corp. and Verizon Communications Inc. He also said that security concerns had been raised by the Department of Homeland Security, and that it was unclear whether the two agencies would work together to expedite the review.

“It’s a really weird thing that’s going on,” Drobac told Bloomberg BNA.

The DHS did not respond to Bloomberg BNA’s request for comment.

Swift Action Expected

Drobac said the Small UAV Coalition hopes that once Transportation Secretary Elaine Chao is settled in and has filled top management positions at the DOT, she will tackle the drone rulemaking process swiftly.

“My hope and my expectation is that it won’t take long for her to lead,” Drobac said. “I’m of the mind that the secretary will involve herself personally in getting things cleared quickly.”

He said Chao has the authority to exempt the rules from the executive order.

It’s not yet clear how Chao plans to approach the issue. Her press office did not respond to several requests for comment.

Chao told the National Governors Association on Feb. 26 that she will seek input from state regulators before issuing more drone regulations. She also said she was re-evaluating a driverless car guidance issued by the Obama administration in September. She did not indicate whether any automated car safety regulations might be forthcoming.

Industry groups shouldn’t put too much stock in the idea that Chao will be able to work around the executive order by exempting safety regulations, according to Allison Zieve, the director of Public Citizen’s litigation group. Public Citizen is a consumer safety advocacy group based in Washington.

“Exceptions might work with any one rule but still puts the agency in a position where it’s going to have to engage in just totally irrational decision-making in order to meet that annual offset,” she said. “And also ... it’s sort of contrary to the theory of the executive order, if they’re just going to grant exceptions all the time.”

Public Citizen Objects to Order

Public Citizen is one of several safety groups that have argued that the order could freeze work on a broad swath of transportation safety regulations such as a proposed rule to require wireless car-to-car communications and another to mandate that companies that operate trains transporting crude oil prepare spill response plans.

Public Citizen, the Natural Resources Defense Council and the Communications Workers of America filed a lawsuit against Trump on Feb. 8 claiming that forcing agencies like the Federal Motor Carrier Safety Administration and the National Highway Traffic Safety Administration (NHTSA) to factor the costs of new regulations into their rulemaking process violated the statutes granting them regulatory authority.

For example, the Motor Vehicle Safety Act directs NHTSA to develop regulations that reduce traffic accidents. The agency is supposed to consider relevant safety data when it develops the rules. Nothing in the statutes indicates the cost of the regulation should also be a consideration, according to the lawsuit.

“The Trump regulatory executive order focuses irrationally on regulatory costs to the exclusion of regulatory benefits and arbitrarily demands that two rules be removed for every new one adopted,” the suit says.

“The predictable and certain ‘outcome’ of that approach is to grind to a halt the process by which new rules are adopted to protect health and safety, the environment, worker rights and consumer well-being.”

The lawsuit highlights several transportation safety regulations that could be adversely affected by the order. They include:

•  A proposed rule to require speed-limiting devices on vehicles,
•  A proposed rule to require all cars and light trucks be equipped with vehicle-to-vehicle communication technology, and
•  A proposed rule for railroads to have oil spill response plans and to share information about high-hazard flammable train routes with state and tribal emergency response organizations.

Administration Balks

The Trump administration has until April 10 to respond to the lawsuit, which was filed with the U.S. District Court for the District of Columbia. But White House officials already have indicated that the president does not plan to back down.

“The lawsuit presumes a lot of outcomes that are wildly inaccurate,” White House spokesman Sean Spicer said at a Feb. 8 press briefing.

Still, some in the legal community have questioned whether the order can be implemented without congressional approval, because it is Congress that has direct authority over the issuance of regulations.

To contact the reporter on this story: Stephanie Beasley in Washington at sBeasley@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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