The bill aims to “facilitate the use of outcome-based performance standards by the Department of Transportation,” and was first introduced in May 2017 during the previous Congress. The lead sponsor for both iterations of this legislation is Rep. Mark Meadows (R-N.C.) and seeks to address a longstanding problem at the U.S. Department of Transportation (USDOT).
In March 2017, CEI published my report on the problems with USDOT’s approach to safety regulation, which too often results in prescriptive rules that forbid cheaper, superior alternative compliance—particularly with respect to freight rail safety regulation. In that report, I suggested that Congress require USDOT to:
- Conduct a comprehensive review of all rules, guidance, and enforcement policies;
- Publish a report providing a complete inventory of the above policies; and
- Develop a plan explaining how it plans to measure intended outcomes of future regulations, while allowing regulated entities to suggest how a performance-based rule might achieve the desired outcomes better than a prescriptive rule.
These recommendations were modeled on successful truck safety regulatory reforms enacted in 2015 under the surface transportation reauthorization, the FAST Act. And in the FAA Reauthorization Act of 2018, Congress again recognized this legacy problem at USDOT by including Section 329, which requires the Federal Aviation Administration “to the maximum extent possible and consistent with Federal law” promulgate performance-based regulations in lieu of rigid, prescriptive rules. Rep. Meadows’s bill would build on these recent mode-specific policy improvements by applying these performance-based reforms across the entire department.
The bill contains three main elements. First, it requires USDOT to conduct a comprehensive review of existing regulations and determine which are prescriptive and, of those rules, which are able to be replaced by performance-based standards.
Second, the bill orders USDOT to submit to Congress a report on the results of its comprehensive review that must include:
- A list identifying each prescriptive rule that USDOT determined was able to be replaced by a performance-based standard;
- A plan to replace those prescriptive rules with performance-based standards;
- A list of any prescriptive rules not contained in the aforementioned list; and
- Legislative recommendations to facilitate further replacement of prescriptive rules.
Third, it codifies the directive of President Clinton’s 1993 Executive Order 12866, Section 1(b)(8), which stipulates that, whenever possible, any new regulations promulgated by USDOT shall be performance-based rather than prescriptive rules that specify the behavior or means of compliance regulated entities must adopt.
For too long, prescriptive rulemaking has led to regulatory outcomes that unnecessarily increase costs, inhibit innovation, and sometimes perversely reduce safety. We applaud Rep. Meadows’s leadership on this important regulatory reform issue.
Read the full letter here. In addition to CEI, signatories include American Commitment, Americans for Modern Transportation, Americans for Prosperity, Consumer Action for a Strong Economy, FreedomWorks, National Black Chamber of Commerce, National Taxpayers Union, R Street Institute, and TechFreedom.