Mr. Daniel Cohen
U.S. Department of Transportation
Office of the General Counsel
1200 New Jersey Avenue, SE
Washington, DC 20590
Re: Comments on DOT-OST-2025-0026-0001, “Ensuring Lawful Regulation; Reducing Regulation and Controlling Regulatory Costs”
Dear Mr. Cohen:
On behalf of National Taxpayers Union (NTU), America’s oldest national-level taxpayer advocacy organization, I am pleased to submit the following brief comments regarding the Department of Transportation’s Request for Information (RFI) which “seeks comments and information to assist DOT in identifying existing regulations, guidance, paperwork requirements, and other regulatory obligations that can be modified or repealed, consistent with law, to ensure that DOT administrative actions do not undermine the national interest and that DOT achieves meaningful burden reduction while continuing to meet statutory obligations and ensure the safety of the U.S. transportation system.”
I. Introduction
NTU is the nation’s oldest taxpayer advocacy organization, founded in 1969 to achieve favorable policy outcomes for taxpayers with Congress and the executive branch. Our experts and advocates engage federal policymakers on important matters affecting taxpayers in a variety of settings, including tax administration, financial services, government liabilities, product and service regulation, transportation and infrastructure, trade, telecommunications and technology, and health care. Several items on this list intersect and provide NTU with an opportunity to offer its views today.
NTU has an abiding interest in policies that meet the challenges of transportation and infrastructure while protecting taxpayers and the free-market economy. Accordingly, NTU has made recommendations to Congress going back to the Airline Deregulation Act of 1978, the Staggers Rail Act of 1980, the Motor Carrier Act of 1980, and the Bus Regulatory Reform Act of 1982. We have also filed extensive comments with regulatory entities in the transportation space, including the Surface Transportation Board, the Federal Railroad Administration, and the Federal Aviation Administration.
II. NTU’s Comments
Create Permanent Processes and Institutions that Will Make DOT-OST-2025-0026-0001 a “Living” RFI. NTU supports the precepts of Executive Orders 14219 and 14192, both of which offer the prospects of savings to taxpayers in the administration of federal programs, economic efficiency, and better, safer provision of services to consumers. We are especially encouraged to see the RFI’s careful attention toward Executive Order 14192’s provision for ongoing reviews in support of the new regulatory incremental cost allowance concept. Few other processes have as powerful a potential for incentivizing more rigorous, consistent cost-benefit analysis in rulemaking. We likewise applaud DoT’s decision to create an email portal that will provide “interested parties” a way “to identify to DOT—on a continuing basis—existing regulations, guidance, reporting requirements, and other regulatory obligations that they believe can be modified or repealed, consistent with law.” NTU believes that every federal entity should maintain such a mechanism for receiving constant input from stakeholders on regulatory burdens and ways to alleviate them.
Another institutional approach to supporting Executive Orders 14219 and 14192 is the creation of a Transportation Advocate’s Office at DoT. NTU originally suggested this concept as a “Rail Advocate” to provide balance to the concerns of those affected by regulations from the Surface Transportation Board (STB). As we outlined in comments to STB more than five years ago:
[W]hat types of tax-law vagaries (e.g., the short line tax credit) or labor laws create uncertainty for revenue adequacy of railroads? What kinds of environmental restrictions on refineries or energy extraction operations weigh upon shippers? Are smaller shippers disproportionately affected by regulatory issues, and to what degree? Are there state or local government property tax classification systems that make carrier or customer infrastructure highly difficult to augment or relocate? STB has already conducted some of this work, or at least considered what is involved; we would recommend that the work be expanded and maintained on an ongoing basis.
Several federal agencies analyze questions of this nature within their own policy spheres. Just one example for STB’s consideration is the Small Business Administration’s (SBA) Office of Advocacy.
The mission of the SBA Office of Advocacy is to serve as “the independent voice for small business within the federal government, the watchdog of the Regulatory Flexibility Act, and a source of small business statistics and research. Advocacy advances the views and concerns of small business before Congress, the White House, federal agencies, federal courts, and state policymakers.”
Although the Office of Advocacy was created by statute and has a significant staff, STB need not wait for a congressional appropriation to adopt some of the approaches the Office takes in fulfilling its mission. The SBA Office of Advocacy provides regular, detailed analysis in notice and comment situations involving other agencies (e.g., the Departments of Labor and Treasury) as well as congressional hearings. STB is familiar with these settings, but a more advanced tool that SBA has finely honed is the multijurisdictional roundtable. These in-depth discussions, hosted by the Office, bring together public and private sector leaders from every industry, agency, and level of government that might have an impact on small business. … As participants in some of these roundtables, NTU can attest to the value they have in fostering a greater understanding over the interconnectedness of stakeholder interests and creating a common analytical framework for the economics of rulemakings as well as statutory guidance.1
Over time, STB can establish, with feedback from the public and private sectors, a similar knowledge base of the practical regulatory considerations across the spectrum of government that affect all private entities with an interest in rail’s future. The results will be useful in a number of applications, from gaining a better appreciation of how STB’s rulemaking interconnects with other regulations, to providing clearer rules of the road as to what should be evidential in all types of rate cases (regardless of whether they operate under current or some new kind of procedures).2
Just as it could be created at STB, an Advocate’s Office could be created at DoT that would have jurisdiction across all its entities, including the Federal Aviation Administration, federal Highway Administration, and Federal Railroad Administration. A DoT Advocate could also interact with independent agencies such as the STB and the Federal Maritime Commission. Although Congress could and should have a say in how a DoT Advocate would be funded and staffed, initially this office could be created via the Federal Advisory Committee Act.
Another model for operational consideration is the National Taxpayer Advocate of the Internal Revenue Service. Again, this entity was created by statute, but one of its functions—identifying and quantifying the most administratively onerous tax regulations and sub regulatory guidance—could be instructive for DoT.
Yet another important consideration for future DoT regulations is adopting tools to receive more detailed, collaborative, and iterative input. While the Administrative Procedure Act’s (APA’s) notice and comment process is vital and should be strengthened, it should also be supplemented. One example is the “regulatory sandbox” model, pioneered in the financial and technology policy spaces internationally and at the U.S. state levels.
As Ryan Nabil, the Director of Technology Policy and Senior Fellow for NTU’s research arm (NTU Foundation) wrote prior to coming to our organization:
‘[R]regulatory sandbox’ programs allow companies to test innovative products and services under a modified and frequently lightened regulatory framework for a limited period. These programs allow companies to test new financial products and enable regulators to become more familiar with technological innovation and its impact on businesses. By allowing regulators to evaluate how different rules impact businesses, sandbox programs can provide crucial information to help regulators craft business- and innovation-friendly rules.3
Recently, NTU Foundation proposed this framework to the Internal Revenue Service for developing tax regulations governing cryptocurrency. NTU Foundation Attorney Lindsey Carpenter explained how it would function in comments to the IRS:
Under this sandbox method, the IRS would recruit cryptocurrency experts from outside the IRS. These experts should represent all areas of cryptocurrency: Regulatory, taxation, trading platforms, cybersecurity, investors, brokers, sellers, etc. Then, in a controlled environment, the IRS should foster allowing for the free flow of ideas about cryptocurrency and how to properly tax such.4
DoT would be an ideal candidate for adapting the regulatory sandbox method, beyond the RFI immediately at issue here. Provided that the Department initiated them as an additive approach to APA requirements, regulatory sandboxes should be within the Executive Branch’s authority to pilot.
Take Specific Steps toward Regulatory Relief Under DOT-OST-2025-0026-0001. Besides creating processes and structures that would support success in regulatory reform, there are several areas that NTU would encourage DoT to examine. We believe the following are but a few recommendations that can encourage taxpayer-friendly policies in connection with Executive Orders 14219 and 14192.
- Promote life-cycle cost analysis (LCCA), Value Engineering (VE), and Technical Auditing (TA) for taxpayer-funded projects. One of the best cost-effectiveness provisions that should be a requirement on taxpayer-funded projects is life-cycle cost analysis. This is an important taxpayer guardrail that uses detailed accounting data to accurately estimate the total cost of a project, including initial construction, maintenance, resilience, and savings from alternative construction materials. In the past, NTU supported bipartisan legislation to require LCCA on federally funded infrastructure projects above $30 million.5 DoT could, under existing authority, conduct supplemental LCCA, VA, and TA analyses on a select group of projects to help prove this concept’s utility going forward.
- Cut Permit-Related Red Tape. January 2025 comments NTU filed in response to a DoT and Department of Justice RFI that cited a piece from Clifford Winston of the Brookings Institution, who offered a cogent observation regarding U.S. aviation:
New ports are not being built for the same reasons the United States has built only one major airport since 1973: There is little economic incentive, and the regulatory and other governmental constraints are formidable. As a result, congestion is increased, shipments are delayed, and carrier operating costs and consumer prices are increased.6
Winston’s observation is also directly translatable to the purposes of this RFI. Without regulatory processes that facilitate responsible airport infrastructure where demands dictate, a pro-consumer, pro-labor, pro-growth environment is harmed. DOJ and DOT cannot brush aside dire concerns that these processes currently cannot support aviation competition. Indeed, various government restrictions on air travel competition that remained after the 1978 law have been known for some 30 years. These include poor gate capacity at airports, restrictive landing rights, and “perimeter rules” barring some facilities from receiving long-haul flights.7
- Promote reasonable rail safety regulation and avoid unjustified proposals such as mandates for two-person train crews. In the past, Congress attempted to mandate that large railroads maintain two-person crews. This is misguided regulatory overreach.8 In 2019, the Federal Railroad Administration (FRA) concluded there was little to no evidence that safety could be compromised by single-person crews when deployed properly on certain routes.9 Yet, the FRA under the Biden Administration plowed ahead with such a mandate. The two-person rule would impose significant and unnecessary costs on American taxpayers and consumers, a point that the Taxpayer Defense Center, organized under NTU’s research arm asserted via an amicus brief in support of parties litigating against the edict.10 DoT should act to repeal FRA’s misguided regulation.
- Nurture and Encourage Public Private Partnerships (PPPs). PPPs allow a single private consortium to design, build, operate, and maintain a government facility, road, or other piece of infrastructure. This arrangement has saved as much as 25% over life-cycle project costs, and transfers the risk of excessive costs or delays from taxpayers to the PPP consortium.11 Legislation introduced in Congress called the Public Buildings Renewal Act would have operationalized a form or PPP, supported by Private Activity Bonds, for vertical infrastructure to supplement PPPs in roads. Until such legislation is enacted, DoT could conduct further econometric research in support of PPPs for distinct types of infrastructure.
- Encourage the use of competitive bidding. NTU endorses the approach proposed in the 2019 Sustainable Municipal Access to Resilient Technology in Infrastructure (SMART Infrastructure) Act. This would create an open, competitive bidding process for working with construction material suppliers on all future infrastructure projects that receive federal dollars from the Federal Highway Administration, Army Corps of Engineers, Environmental Protection Agency, and Department of Agriculture. As an NTU-led coalition put it in an open letter to lawmakers, “open competition in infrastructure procurement is a commonsense way for members of Congress to fulfill their obligation to act as responsible stewards of government resources.”12 As with PPPs, DoT could provide valuable research on the benefits of competitive bidding for federal highway and other projects while Congress considers policy options such as those in the SMART Infrastructure Act.
- Discourage reciprocal switching requirements that undermine the benefits of rail deregulation. In the past, the Surface Transportation Board has considered a proposed rule on so-called reciprocal or competitive switching.13 This would require an incumbent railroad to serve a rival’s customers on its own facilities, with the non-incumbent railroad paying compensation. Moving forward with this approach would mark a significant departure from the deregulatory framework enacted in 1980 that has created enormous benefits for shippers, carriers, and consumers.14
There are numerous other transportation-related laws and attendant regulations that NTU would recommend for reform. Among these are cabotage laws on maritime shipping such as the Merchant Marine Act of 1920, recently finalized rulemakings on competitive switching proposed through the Surface Transportation Board, actions from courts at the behest of the Biden Administration blocking an airline merger, and attempts to prioritize economically inefficient, taxpayer-subsidized Amtrak passenger routes on privately-owned tracks.15
Other laws and regulations indirectly related to transportation nonetheless have a major impact on the future of infrastructure in the United States. A standout here is President Trump’s signature Tax Cuts and Jobs Act, many of whose provisions expire at the end of 2025. Of particular importance to many private-sector transportation providers is maintaining (or even reducing further) the corporate tax rate the President has championed as well as full and immediate expensing for capital expenditures. The latter has been especially helpful to airlines, which often struggle to remain financially healthy amid constant pressures to replace their equipment.16
III. Conclusion
The items described here are outside DoT’s direct remit because they are either under the jurisdiction of other executive branch entities like the U.S. Maritime Administration or even the U.S. Congress. Yet, depending on how they are resolved, they certainly could, in the words of this RFI, “impose significant costs upon private parties that are not outweighed by public benefits” or “impose undue burdens on small business and impede private enterprise and entrepreneurship.” It is NTU’s hope and counsel that DoT will exercise leadership in regulatory reform, and in the process inspire others in the infrastructure and tax orbit to do the same.
Thank you for your consideration of our views, and should you have any questions, NTU is at your service.
Sincerely and respectfully,
Pete Sepp
President
1 For further introductory information on Office of Advocacy activities, see https://advocacy.sba.gov/category/regulation/agency-roundtables/, https://advocacy.sba.gov/regulatory-reform/, and https://advocacy.sba.gov/category/research/economic-reports/.
2 Cited in NTU’s comments to STB at NTU Submits Comments to the STB On Rate Relief and Market Streamlining - Publications - National Taxpayers Union.
3 See https://cei.org/studies/how-regulatory-sandbox-programs-can-promote-technological-innovation-and-consumer-welfare/ and NTUF Comments to OMB on AI Governance - Foundation - National Taxpayers Union.
4 See Carpenter’s comments at NTUF's Comments On IRS Cryptocurrency Regulations - Foundation - National Taxpayers Union.
5 For background, see Stauber Introduces Legislation to Help Improve America’s Infrastructure in Cost-Effective Way | Representative Pete Stauber.
6 See Winston’s piece at https://www.nytimes.com/2024/10/01/opinion/port-strike-shipping-union-inflation-prices.html.
7 See, for example, https://www.gao.gov/assets/110/107244.pdf.
8 See NTU’s analysis at https://www.ntu.org/publications/detail/hearing-on-rail-safety-features-mostly-closed-ears.
9 See Federal Register :: Train Crew Staffing.
10 See details on the NTU Foundation suit at . NTUF Files Brief Against FRA's Costly Two-Person Crew Mandate, Citing Economic and Regulatory Overreach - Foundation - National Taxpayers Union. “The railroad industry made tremendous strides recently in productivity and efficiency, benefitting from deregulation and technological advancements of the last few decades. These improvements have lowered costs for consumers, created high-paying jobs, and reduced taxpayer burdens. The FRA’s rule, however, threatens to reverse these gains by stifling innovation and imposing billions of dollars in additional labor costs. This is particularly troubling given that other sectors, like trucking, continue to advance with automation and technological integration.”
11 For background, see https://www.ntu.org/publications/detail/ntu-welcomes-reintroduction-of-legislation-to-expand-public-private-partnerships.
12 For background, see Coalition Supports Open Competition Legislation for Infrastructure Projects - Publications - National Taxpayers Union.
13 See NTU’s comments at https://www.ntu.org/publications/detail/ntu-offers-comments-to-the-surface-transportation-board-on-reciprocal-switching.
14 See NTU’s analysis at https://www.ntu.org/publications/detail/railway-case-could-upend-common-carrier-precedent.
15 See, for example, NTU Comments on Competition in Air Transportation - Publications - National Taxpayers Union; NTU Offers Comments to the Surface Transportation Board on Reciprocal Switching - Publications - National Taxpayers Union; The Jones Act Paradox: and Why is a Law that is Deemed "Essential" So Frequently Waived? - Foundation - National Taxpayers Union.
16 See, for example, the NTU Policy Paper “Airline Deregulation at 40” (Airline Deregulation At 40 - Publications - National Taxpayers Union ) from the following sources: Zhang, Benjamin, “Trump’s Tax Reform Is Giving US Airlines an Incredible Boost - at Least for Now.” Business Insider, 25 Jan. 2018, www.businessinsider.com/us-airlines-are-saving-billions-of-dollars-from-tax-reform-employees-get-bonuses-2018-1; Levine-Weinberg, Adam, “The 4 Best Airline Stocks Would Be Huge Tax-Reform Winners.” The Motley Fool, 28 Nov. 2017. www.fool.com/investing/2017/11/28/the-4-best-airline-stocks-huge-tax-reform-winners.aspx; and Zank, Sebastian, et al., “Airlines: Trump Tax Reform to Spur Competition on Transatlantic Routes.” Scope Ratings, 19 Feb. 2018. https://www.scoperatings.com/ScopeRatingsApi/api/downloadstudy?id=fe7ac296-ce5b-4d8c-a343-c911ab0493f2.