The incoming Trump Administration has strongly signaled its intent to slender the function and scope of presidency regulation. Though aviation will at all times be topic to stringent and pervasive security regulation, this put up examines the areas by which the Trump Administration might depart from the Biden Administration’s different aviation priorities. The observations beneath are primarily based on each a assessment of the file of the primary Trump Administration and statements made by the president-elect and/or his transition staff.
Withdrawal or Repeal of Current Laws
Firstly of the primary Trump Administration, federal regulatory companies have been directed by Govt Order to withdraw or repeal two current insurance policies or rules earlier than issuing any new insurance policies or rules.1 Anticipate the brand new administration to undertake an analogous strategy, which signifies that the brand new administration might both freeze the processing of or formally withdraw U.S. Division of Transportation (DOT) Notices of Proposed Rulemaking (NPRM) that at the moment are within the pipeline, such because the proposed new Household Seating Rule,2 and take a measured and even hostile strategy towards the issuance of recent rulemaking initiatives.3
Constrained Regulatory Enforcement
Within the space of shopper regulatory enforcement, the DOT within the first Trump Administration adopted a coverage that if an exercise or conduct was circuitously banned by a statute or regulation, then the DOT wouldn’t search to take enforcement motion in opposition to such exercise or conduct.4 This was vital as a result of the DOT traditionally had issued enforcement coverage and compliance directives by way of casual statements and regulatory decision-making. In stating a narrowly tailor-made strategy towards enforcement motion, the DOT’s then-general counsel issued an in depth steering memorandum to the working administrations inside the DOT that cautioned in opposition to „overly broad or unduly expansive interpretations of the governing statues or rules,“ expressly stating that the DOT wouldn’t be counting on „judge-made guidelines of judicial discretion, such because the Chevron doctrine.“5
Given the U.S. Supreme Courtroom’s latest rejection of the Chevron doctrine within the Loper Vibrant determination and the extremely conservative strategy towards regulatory enforcement taken by the DOT below the primary Trump Administration,6 anticipate DOT enforcement exercise to each decline and be extra narrowly constrained than it has been below the Biden Administration, which has emphasised each the scale and quantity of fines levied in opposition to industrial airways as proof of its pro-consumer bent.
Modifications in Antitrust Coverage
Though airline merger and alliance transactions are extraordinarily fact-specific, the brand new administration will probably take a extra permissive strategy to cooperation between airline rivals than seen within the Biden Administration. The Trump marketing campaign and first Trump Administration embraced a laissez-faire strategy to mergers and joint ventures. Against this, the Biden Administration has sharply criticized consolidation within the airline business and in different sectors of the American economic system and challenged a number of airline mergers and industrial alliances.7 It is also open to query what motion, if any, the brand new administration will absorb response to data gathered and obtained by the Biden Administration in reference to the Joint DOT-U.S. Division of Justice Request for Details about competitors within the airline business that was issued in October 2024.8
Holland & Knight’s Aviation Crew displays authorized developments within the industrial aviation business on an ongoing foundation and can be reporting on new and rising shifts in regulatory and authorized insurance policies.
20 Posts in 20 Days Resulting in Inauguration Day on Jan. 20
Holland & Knight’s Transportation & Infrastructure Business Sector Group is ready to help business purchasers in adapting to the anticipated modifications by the brand new administration. Our staff is writing new weblog posts every day main as much as President-Elect Donald J. Trump’s inauguration, with insights relating to probably impacts on the assorted segments of the business, together with Aviation, Building, Maritime, Freight Rail, Motor Carriers, Transit and Autonomous Transportation. Bookmark our Election Impacts on Transportation & Infrastructure useful resource web page to observe alongside.
Notes:
1 See Govt Order 13371, „Lowering Regulation and Controlling Regulatory Prices,“ issued Jan. 30, 2017, printed in 82 Fed. Reg. 9339 (Feb. 3, 2017).
2 See DOT, „Household Seating in Air Transportation,“ NPRM, 98 Fed. Reg. 65272 (Aug. 9, 2024).
3 A word of warning to inject is that in a latest Senate Commerce Committee Listening to on Airline Client Practices, Sen. Josh Hawley (R-Mo.) made remarks vital of airline shopper practices, a improvement which may counsel a shift in tenor in Republican circles. See, e.g., Anne Marie Lee, „Airline Executives Blasted at Senate Listening to Over Service Charges, “ Dec. 5, 2024.
4 Memorandum from Steven G. Bradbury, DOT Basic Counsel, to secretarial places of work and heads of working administrations, Feb. 15, 2019.
5 Id. at 6.
6 In 2016, the final 12 months of the Obama Administration, the DOT issued 28 Consent Orders, imposing civil penalties within the quantity of $6.36 million. By comparability, the Trump Administration in 2020 issued six Consent Orders within the whole quantity of $1.62 million. See DOT Docket OST-2016-0001 and DOT Docket OST-2020-0001 for a comparability between the 2 years.
7 Govt Order 14036, July 9, 2021.
8 See DOJ press launch, „Justice Division and Division of Transportation Launch Broad Public Inquiry into the State of Competitors in Air Journey,“ Oct. 24, 2024. Feedback on that question are due by Jan. 5, 2025.
