The recent relief in regulations is now codified in a final DOT rule.
Many operators felt the unprecedented regulatory and enforcement actions of the last administration, with compliance reviews that lasted weeks instead of days, increased fines and, for some, even worse. The ample compliance review that always earned a “Satisfactory” rating quickly evolved into the comprehensive safety investigation, looking for every “I to be dotted” and “T to be crossed.”
As some watched their neighbors go under while waiting for a bureaucrat to accept their corrective action plan, others fretted a similar fate would wipe out everything they had worked for years to build. More than a few retirement plans were accelerated. New entrants dwindled, along with the number of passengers served.
Meanwhile, it seemed as though the endless stream of regulations would never end. If they did not know it before, everyone now knows that the regulatory burden is borne disproportionately by small fleet operators—the heart and soul of the bus and motorcoach industry.
As a businessman himself, President Trump faced the wrath of regulations and their adverse effects on business and immediately went to work reducing the number of regulations upon his arrival in Washington, D.C. Every department was charged with reducing and minimizing the number of regulations.
Under the leadership of Secretary Elaine Chao, the Department of Transportation has led all departments in reducing regulations. A final rule has been issued revising the promulgation of the issuance of guidance, regulations and enforcement. Some highlights:
Guidance
In the past, guidance was occasionally drafted and/or interpreted in a manner that essentially created an additional rule. The final rule states, “… the guidance document is only to provide clarity to the public regarding existing requirements under the law or agency policies.”
Further, the final rule requires a good faith cost assessment of any guidance document. In general, guidance should never be used to expand the original intent of a regulation.
Regulations
A summary of the following policies governs the development and issuance of regulations:
- There should be no more regulations than necessary.
- All regulations must be supported by statutory authority and consistent with the Constitution.
- Should be supported by the best available evidence and data.
- Should be written in plain English, straightforward and clear.
- Specify performance objectives rather than prescribing specific conduct that must be adopted.
- Be designed to minimize burdens and reduce barriers to market entry.
- Benefits must exceed the cost. For each new significant regulation, two existing regulatory burdens must be revoked.
- Regulations should be reviewed periodically and revised to ensure they continue to meet their objectives and remain cost effective.
- Public participation should be encouraged.
- The rulemaking process should be sensitive to economic impact and encourage greater public participation.
Enforcement
Perhaps most important, the final rule states, “The final rule ensures that DOT provides affected parties appropriate due process in all enforcement actions, that the Department’s conduct is fair and free of bias and concludes with a well-documented decision as to violation alleged and any violations found to have been committed, that the penalties or corrective actions imposed for such violations are reasonable; and that proper steps needed to ensure future compliance were undertaken by the regulated party.”
The final rule further states, “Due process always includes two essential elements for a party subject to an agency enforcement action: adequate notice of the proposed agency enforcement action and a meaningful opportunity to be heard by the agency decision maker.
Finally, the final rule states, “The employees and contractors of DOT responsible for inspections and other investigative functions must not use these authorities as a game of ‘gotcha’ with regulated entities and should follow existing statutes and regulations. Rather, to the maximum extent consistent with protecting the integrity of the investigation, the representatives of DOT should promptly disclose to the affected parties the reasons for the investigative review and any compliance issues identified or findings made in the course of the review.”
These are just a few of the highlights, and you are encouraged to review the entire final rule at https://www.transportation.gov/regulations/administrative-rulemaking-guidance-and-enforcement-procedures.
If you ever wondered if your letters, emails and personal contacts during the annual fly-in with your federal legislators is effective, here is proof. Much of the original BUSREGS-21 is reflected in this action, and your elected representatives have voiced your concerns. Your UMA Board of Directors and UMA Legislative & Regulatory Committee have been listening to you as well, providing the direction, guidance and resources to effectively voice your concerns.
Let’s hope the agencies that regulate the bus and motorcoach industry adopt all these new policies very rapidly. Finally, there is hope that we can get back to serving the public in a compliant, safe and effective manner without fear that a regulator is trying to put us out of business.
