It's a common refrain: What an idiotic rule. Who thought this was a good idea? Do they have any experience in running a truck fleet? Do they understand what it will do to my business?
But if you're reacting to a rule or regulation that's already been finalized, it's too late to do anything but fume and complain. The time to act was when the new initiative or change to an existing rule was first proposed. The federal and state agencies responsible for regulating trucking activities are required to follow formal processes that include requesting public comments. The problem is that process is often complex, hidden deep within mounds of official notices, filled with agency jargon and opaque requirements, and just plain difficult to navigate for the average fleet executive.
For example, a proposal to change hours-of-service rules must be published in The Federal Register, a daily compilation of official public notices from all federal rulemaking entities. If you happen to monitor the register on a daily basis and find the proposal, you'll need to translate the legal presentation of the rule into a realistic appraisal of how it will actually affect your operation. And then, if you make it to the end of the notice, you'll find specific instructions on how to submit comments. The agency issuing the proposal is obligated to consider submitted comments as it moves forward with its proposal, but only if they present substantiated data or real examples of that impact. Comments that don't get beyond complaints such as “I don't like this” or “This is a bad rule” carry no weight.
“Ninety-six percent of the industry operates fleets of 20 or fewer vehicles,” says Rich Moskowitz, vice president and regulatory affairs counsel for the American Trucking Assns. (ATA). “The chief operating officer is wearing multiple hats. Maybe they're also the driver trainer, or the maintenance manager, too. It's unrealistic to assume they have the time to monitor The Federal Register every day to figure out if any notices pertain to their company.”
Traditionally, that's where trade associations like ATA or the National Private Truck Council come in. They have the professional staff that can monitor the Dept. of Transportation, the Environmental Protection Agency, Dept. of Labor, Homeland Security Administration, Customs, and “all the other agencies with tentacles into trucking and alert members to the likely impacts,” says Moskowitz.
Groups like ATA can also serve as focal points for feedback from their members that can be organized and presented to the regulatory bodies as part of the formal comment process. “Most DOT officials have never operated a truck or worked in the for-hire fleet environment,” says Moskowitz. “The more ways we can inject some of that real-world experience into the process, the better chance we have of getting regulations that accomplish their intended purpose.”
A good example is Federal Motor Carrier Safety Administration (FMCSA) efforts to modify hours of service (HOS). “Comments [on HOS] have been a prime example of how associations and the industry can marshal resources to ensure government regulators have accurate information on the impact of their proposals,” Moskowitz says.
While trade groups provide the expertise necessary to effectively monitor government regulatory activity, when it comes to influencing the actual shape of those regulations, nothing carries more weight than the voices of those actually at the receiving end — the fleets running the trucks. To that end, ATA has established a grassroots program (www.truckline.com/advissues/grassroots) to help educate fleets on how to get involved.
The various agencies themselves are starting to recognize the importance of higher citizen involvement in the process, involvement that has largely been blunted by the bureaucratic hoops that can be a barrier for the general public. Slowly but surely, they are turning to the potential of easier access offered by the Internet and social media to remove those barriers and broaden involvement. And of high significance to trucking, one of the most aggressive in this area is the U.S. DOT.
One of DOT's more interesting efforts has been a pilot program established with Cornell University. Specifically created to use Web 2.0, or the ability to have users interact and create content using web-based tools, Regulation Room (http://regulationroom.org) was created outside of the normal government channels “to improve public participation in rulemaking” by the Cornell e-Rulemaking Initiative (CeRI) at the university's law school.
“As a research institute, we were interested in how agencies can use Web 2.0 more effectively, so we said we'd build the Regulation Room to try out different techniques, designs, presentations of information, and then pass that information on to the agencies,” says Cynthia Farina, a law professor at Cornell and a principal CeRI researcher.
One of its first projects involved the proposed FMCSA rule requiring carriers to use electronic onboard recorders (EOBRs). “Our goal is to generate best practices and suggestions to help agencies do it themselves, not to be a provider of a government participation site,” says Farina.
The group identified three main hurdles to public participation. The first is affected groups don't know that there's a rule that affects them. Using social media and electronic communication tools, the group's first task was to get the word out about the proposed EOBR rule. “We got names from trade groups, blogs and others,” says Farina. “We emailed them, tweeted, created a Facebook page. We even took out ads on Facebook and Google asking people to come to the Regulation Room to tell the government what they thought. It was surprisingly effective.”
The second hurdle is that most people don't understand the formal rulemaking process. “Most of our users think that all they have to do is voice an opinion,” Farina explains. “There has to be a presentation of facts and data. To be effective, comments have to move beyond outrage and really talk about what your life is like and how [the rule] would affect you.”
The third hurdle is that proposals created by the agencies are very involved. “The EOBR notice of proposed rulemaking was very long and fairly complex,” says Farina. “The quantity and complexity of information can be overwhelming. Also, people don't go online to read complex information, so we wanted to break it up into manageable chunks, translate it but not dumb it down.”
With the EOBR comment period now closed, CeRI believes its efforts were successful. The third rule they'd addressed got a lot of positive feedback from users as well as a good deal of interaction between users on the issues involved, according to Farina.
“What we're so excited about is that this is the first meaningful opportunity for people to weigh in and get their experiences into the process,” she says. “Agencies have not been getting what it's like on the ground. With Web 2.0, there's the opportunity to really talk about what it's like out in the real world and to make regulations more efficient or cost-effective.”
As exciting as the Regulation Room project may be, it's not the only effort to use the web's interactivity to shape federal regulation. When the major federal agencies were asked by President Obama to undertake a broad review of their regulations and suggest ways to simplify them, DOT turned to IdeaScale (idealscale.com), another web-based interactive discussion tool. Actually a private company offering its collaborative development tools to businesses as well as government entities, IdeaScale goes well beyond soliciting comments to let users propose ideas, discuss them and even vote on their preferences.
Using input from IdeaScale alongside comments submitted through its traditional channels, DOT released a preliminary report calling for simplification to some 70 of its rules, a number of them directly impacting trucking.
“DOT beat the bushes to stimulate public participation in our regulatory review,” Secretary Ray LaHood wrote in his official agency blog, specifically pointing to the use of IdeaScale as one way it hopes to broaden public participation in its regulatory efforts.
If you run a truck fleet, you just have to accept the reality that there seems to be no letup in government efforts to improve truck safety through regulation. But that doesn't mean you're helpless to do anything about that regulation. In fact, it's now easier than it has ever been to stay informed and, most importantly, stay involved when it comes to shaping those regulations.