January 19, 2009
Rulemaking: What Can You Expect?
By James LaRusch
APTA Chief Counsel and Vice President, Corporate Affairs
A few weeks back, Passenger Transport published an article highlighting proposed rules at various stages of the regulatory process that were unlikely to be completed during the outgoing administration. What else might be looming on the regulatory front?
Often, when a new administration moves in, it institutes a freeze on regulatory actions. For instance, on Inauguration Day in 2001, President Bush’s chief of staff, Andrew Card, issued a 60-day freeze on all regulatory actions then pending or passed during the Clinton Administration but not yet in effect. That order affected more than 300 rules, most of which were later discarded by the incoming administration.
A similar directive from President-elect Obama could delay or derail many of the most damaging proposed rules left unfinished. This could include U.S. DOT’s pending changes to its Americans With Disabilities Act (ADA) regulation, originally proposed in February 2006 (not a misprint: the Notice of Proposed Rulemaking was published almost three full years ago); the Federal Transit Administration’s proposed changes to its School Service regulation; and FTA’s 2007 proposal to change the New Starts regulation. All three may be subject to a freeze.
Regulations passed in the last 60 days may also be revoked under a law known as the Congressional Review Act. This seldom-used statute was passed in 1996 and allows the House and Senate to adopt a resolution overturning a rule within 60 days of its publication. The Congressional actions can be passed by simple majority; amendments and filibusters are not allowed. If Congress acts under this authority, the administration is forbidden from issuing a rule that is “substantially the same.”
Although none of the regulations important to transit agencies currently fall into this category, any final rules passed in the waning days of the Bush Administration would be subject to Congressional review. Although we cannot be sure what direction either the new administration or Congress will take, we can be certain that the New Year will bring answers to many looming regulatory issues.
How Do You Keep Track of It All?
Will there be a freeze on any regulatory actions? Will the new administration withdraw pending regulations? And will Congress exercise its authority to overturn regulations?
The answers to these questions and other regulatory issues will be available online at www.apta.com.
Be sure to watch for upgrades, including the ability to obtain RSS feeds, which will alert you to new postings on the SAFETEA-LU Rulemaking and Notices page.