In the first part of this series, we described how federal trucking regulations become law and compared regulations to other forms of government action. The second part focused on the regulatory process. In this final installment, we guide you in crafting effective comments to a regulatory docket.
Practical, workable regulations – rules that can be applied to real-world situations and achieve common goals – are built through your input. The folks at FMCSA may be experts in their field, but their perspective is necessarily from a government point of view (after all, that’s their job). Your perspective, as someone applying the regulations, is critical to a satisfactory result for everyone.
And it is your individual comments that are important. In an industry as diverse as trucking, the regulatory challenges encountered by a dry van carrier may be different from those of a tank hauler. The perspective of a hazmat driver may differ from that of the short-haul driver transporting electronics. Unless you or your trade association submit comments on your unique challenges and concerns, FMCSA will have no means to accommodate them. Regulatory decisions are based on what is in the docket.
What you need to know about submitting comments on proposed trucking regulations.
A docket is the collection of agency notices, documents, petitions and public comments on a specific rulemaking. By going to regulations.gov, you can view each of the entries in a rulemaking and read what others are saying about a proposed regulation. If you want to submit an effective comment, there is one entry in the docket you must read – the agency’s notice.
Comments to any type of agency notice should do at least these three things:
- Address the topic raised by the agency;
- answer the specific questions asked by the agency in the notice; and
- be filed on time.
Effective comments do much more. To accomplish those three basic items, you must read the notice itself. Sadly, many comments to rulemaking dockets are about regulation in general or past agency decisions. They may be legitimate concerns – but if they are not on point with this agency notice, they will have no effect.
Agency notices are often filled with bureaucratic language, acronyms and citations to statutes and federal regulations. Do not be daunted. Begin with these sections, taken from a typical Notice of Proposed Rulemaking in the Federal Register:
- Heading. After the department (e.g., “Department of Transportation”) and agency (“Federal Motor Carrier Safety Administration”), you will see listed, in descending order, the CFR (Code of Federal Regulations) sections affected by the proposal, the Docket Number [shown in brackets], the RIN (Regulation Identifier Number), and the official title of the rulemaking. Make a note of the Docket Number and the rulemaking title. You will cite those in your comments and can use them for tracking developments later.
- Summary. This is a very brief capsule of the proposal. Thorough discussion can be found under sections titled Executive Summary and General Discussion of the Proposal. The summary will let you know how deeply you may want to delve into the notice. If the proposal appears to impact you directly, you may want to review those and other subsequent sections.
- Dates. Comments must be filed by the date shown.
- Addresses. You can file comments electronically, by fax, by mail or by hand delivery.
- Major Issues on Which the Agency Seeks Comment. This section may be buried under pages of explanation and regulatory history, but it is important. The agency will know you actually read the notice when you answer the specific questions it poses here. Answer those where you have facts or experience. If the agency has missed a key issue, point it out in your comments.
Notices also contain lengthy sections on the legal basis for the proposed regulation and on the regulatory history of the topic. This ends with a section-by-section review of the proposed language and various regulatory analyses that agencies must conduct. Comment on these if you have related background and experience.
The best kinds of comments are ‘effective’ ones.
Effective comments are built from these points:
- Identify you as a person or company and why you are affected by the proposal;
- answer the questions listed in the notice and point out important or clarifying questions not posed;
- discuss conflicts or concurrence of the proposal with other federal regulations, with statutes or with state-level regulations and laws – i.e., appeal to regulatory uniformity;
- use facts, data and direct personal experience, cite relevant studies (include a copy of any information used or cited);
- underscore how the proposal hinders or helps you achieve the agency goal – for comments to FMCSA, show how your ability to achieve safety is impacted;
- describe how the proposal hinders or helps you achieve your personal/business goals. While FMCSA is not charged with promoting the economic health of the trucking industry, comments here may affect the cost/benefit analysis for the proposed regulation and may attract the attention of Congress;
- ask for a response and the outcome you desire; and
- above all, respond by the due date!
This series showed what regulations are, the process that they follow, and the way your comments can best influence the outcome. Now it is up to you to participate.