Opinion: Negotiated Rulemakings Can Work
he 15 negotiated rulemakings undertaken by the Department of Transportation since 1983 have resulted in numerous compromise rules and improved communications between the parties involved in the process.
Critics of negotiated rulemakings say it is impossible for trucking, safety groups and labor to reach a compromise on hours of service reform. FHWA is already 21 months behind schedule for issuing a rule, critics say, and going into negotiations will only delay the process.
Maybe so, but a negotiated rulemaking is worth a try, judging from the Federal Railroad Administration’s experience with the process.
Beleaguered by a backlog of proposed rulemakings, many mandated by Congress,
dministrator Jolene Molitoris saw the process as a way to build upon her efforts to improve relations between railroads, unions and FRA.
After four months of negotiations, the agency’s first foray into this way of writing new rules produced safety and training for track workers. Likewise, two passenger train safety working groups — similar to negotiating committees — developed an emergency preparedness rule.
nd now FRA is finalizing a final passenger equipment safety rule.
FRA also created a rail safety advisory committee to develop consensus on the agency’s 40 pending rulemakings and reports. Through the advisory process, FRA has issued new radio and track safety standards for the rail industry and drafted revisions to locomotive engineer certification.
The advisory process has had one notable failure. Despite 18 months of effort, the committee was unable to reach consensus on regulations governing power brakes, forcing the agency to go back to traditional rulemaking.
Power brake rules for the railroads are as controversial as driver hour of service for trucking. In 1992, Congress ordered the agency to come out with the brake regulations within a year. A 1994 FRA proposal was so sharply criticized by both industry and labor that the agency remained deadlocked until the rulemaking was transferred to the advisory committee. After a six month effort, the committee declared an impasse.
Yet neither railroads, unions nor FRA believe those unsuccessful negotiations were a waste of time.
Negotiations force participants away from the “wish list” mentality that pervades the traditional rulemaking process, said James Brunkenhoefer, national legislative director for the United Transportation Union. “In a regular rulemaking, all parties file their wish list, what would be their dream regulation. Then the agency picks out various pieces and makes it a nightmare. A negotiated rulemaking cuts through that. Negotiators can pick out what is a dream and what is reality and deal primarily with that.”
“The power brake rulemaking was one where there was a pretty big gulf between the parties, but even where you have a gulf, the people who are making the rules are being exposed to a lot of information in an arena that is not necessarily adversarial,” said Tom White, a spokesman for the Association of American Railroads.
Several tangible benefits emerged, Mr. Cothen said. “AAR revised some of its interchange rules and single-car test requirements” as a result of the advisory committee’s efforts. “They didn’t wait until a rule came out to implement changes,” he said.
A secondary effect was that people realized why FRA was unable to issue a rule earlier. It gave the parties an understanding of the issues involved and gave them new insight into the process.
If railroads can try it, why can’t trucking?
