Like Dorothy, the Tinman, and the Scarecrow starting into the forest on the yellow brick road, terrified of what beasts they may encounter, adventure park owners and operators may be looking into a frightening forest of regulation. The profusion of regulatory language and systems can be daunting and a bit scary. Knowing what to pay attention to—and how those rules can impact your business —is key to smoothly meeting the legal requirements in your area.
To help you find your way, let’s untangle the terminology, examine the roots of the processes, and get to know the persons who make up the forest. Like Dorothy, aerial adventure operators can befriend the lion of regulation, make it your ally, and walk safely in the regulation forest.
There are two things to remember when looking at regulation:
ALL regulation is local. It only applies in a specific jurisdiction, which is always a defined geographical space, like a state, province, county, city, or district. A law from another state or province has no authority in your location.
Regulators reflect the community interest. In North America and most commonwealth countries, governments derive their power from the consent of the governed. They have authority because the elected representatives in the jurisdiction have created structures to direct authority into specific areas of public life. Many of the specific processes and requirements vary for each jurisdiction. But, fortunately, much of the language is the same, or at least similar.
If you focus on the details, you can become comfortable on your journeys through the regulatory forest and keep the lion of regulation from eating Toto.
Geography is Important
When jurisdictions create regulations for an activity, the first step is giving someone in government the authority to impose rules on a segment of society. This is done by elected officials who write a law.
The law or statute sets out the goals of the new authority, the structure of the authority, and who will implement the new structure. This can be as simple as stating that authority exists and outlining broad goals, or it can be as complex as stating specific procedures, practices, and objectives. The law must go through the legal process and become part of the state Statutes or Code. The Statutes or Code make up all of the laws for a jurisdiction.
For example, Maryland’s Amusement Device code states:
”The purpose of this title is to ensure, as far as possible, the safety of the public in the use of amusement attractions at carnivals, fairs, and amusement parks in the State by providing for:
adoption of safety regulations;
an effective enforcement and compliance program; and
reporting procedures on the safety of amusement attractions…” (Maryland Statutes § 3-102, found in Laws – Statute Text (maryland.gov) )
This simple text outlines the reasoning behind Maryland’s law, and also states some of the goals of the law. The remainder of this roughly 2,200-word statute goes on to describe in broad terms how this will be accomplished.
In contrast, the Massachusetts Amusement Code is more than 43,000 words long, and has a lot more specifics.
Cultivate Relationships
In the U.S. and Canada, legislation is enacted by elected officials. They have staffs who help write the bills they put before the legislature or parliament to create new laws or to amend laws.
As a person represented by lawmakers, you can have influence on the language in a bill and the support that bill receives. To convey this influence, you can write letters, make phone calls, or protest. All of these may get the attention of your lawmaker.
Make yourself known. However, your voice will have the most impact if you already have a relationship with your elected representative. It takes time and attention to develop this relationship, though. You can get to know your representative by attending events, through regular correspondence, and meeting their legislative staff. This is what lobbyists get paid to do—and you can do it, too, as a constituent in a representative government.
Giving attention to this relationship before you need or want a change in the law is important. Just like in the relationships in your work world, the people you know get your attention sooner than people you do not know. Yes, you will be cultivating a relationship with someone whom you may never need to ask to help your industry. But if and when you need to ask, your existing relationship will matter.
How Laws Come to Be
Once a bill passes the legislature and is enacted, the specific detailed processes of putting the law to work is delegated to staff. Specific sections of the code empower a department, a committee, or a board to be formed and undertake rule-making and enforcement of the law. Generally, the people who maintain the day-to-day regulatory process are paid state staff. They often work with volunteer boards, commissions, or committees who make the specific decisions about what rules should be used.
For example, in Wisconsin, the Department of Agriculture, Trade, and Consumer Protection is responsible for the rules governing camps. Those rules lead to a permit, which is required to run a camp and a camp challenge course. Let’s take a look at how the rules are created.
How rules are set. Within the appropriate state agency, someone is tasked with writing a set of rules to meet a specific need—such as, say, a safer summer camp or an inspection program to ensure amusement devices don’t fall apart at the county fair. There is often a set of rules the department must follow in creating regulation. The rules about how to write rules are often called the “administrative code,” and apply to all parts of the authorities’ government. Administrative codes state who must be consulted and how much public or stakeholder input must be gathered.
You are the “stakeholder” if the rules would affect you. The public comment period is often the place where people in the industry have the greatest opportunity to shape the regulation they will operate under. The rules are the specific details each person or entity covered by the legislation and permit system will have to follow. Regulations state the details of the permit system, including what information will be collected on forms, who will review permits, and to what criteria. Rules often lay out the fee structure for a permit system.
Standards can become rules. The people writing the rules will sometimes use industry standards like the ANSI/ACCT Standards to help define the specifics of a permit or inspection system. This is an easy way for the state staff and advisory board members to adopt industry-specific information without the need to be experts in a field.
When this happens, the state may have rules about how standards are adopted.
For example, some states require a review of the standard before it is adopted. By law, these states must adopt a specific published standard, and not the “current ACCT standard.” Changes to the standard in the future would cause a change to the permit requirements, and that would not fit in the state’s rules. After the state reviews the changes and decides to adopt them, they become the new regulation.
There are, however, states that allow the adoption of the newest version of a standard without further review. This is true in some Canadian provinces like Ontario.
Again, forging a relationship with the advisory board or commission is often the most effective way to impact the regulation in your state. If you regularly attend meetings and take a few minutes to meet the board members, they are likely to be much more receptive when you ask them to adjust the specific language of a regulation. This has been very effective in Tennessee and Massachusetts, for example, where the relationships developed by owners who regularly attend meetings made addressing change possible.
Industry influence through standards. Standards are, by definition, voluntary until adopted into regulation. They are also the way the industry can have a significant impact on the specific requirements in regulation. By writing clear, simple, efficient, and effective standards, the industry can shape the specifics adopted in regulation. When an authority adopts a standard or part of a standard, they are using the language and requirements created, at least in part, by the industry.
For example, the ANSI/ACCT Standard states that a course will do a pre-use inspection of each activity. If the standard is adopted, this language is the rule—and a practice the industry is already using is enacted into law. Further, the practice detailed in the standard is not subject to reconsideration in the public comment process of the rulemaking. That streamlines the regulatory process and allows greater industry input. Standards adoption also allows for more uniformity across jurisdictions.
Get Involved
Standards writing is one of the easiest ways to be involved in the regulatory development process. Written by people in the industry at their own pace and not subject to external timetables, stakeholders can take whatever time is needed to carefully craft language expressing the MINIMUM required for our industry.
Standards for our industry are written in a public, open process under the procedures and rules established by the American National Standards Institute (ANSI). ANSI does not set the standards, but establishes the due process procedures to assure all materially affected parties are afforded a voice in the writing of these important rules.
Everyone is encouraged to join the standards writing process if those standards will affect them. That you would be affected by a standard makes you a “materially affected party.” Those affected and interested can help draft new standards language by providing language to standards bodies like the ACCT and PRCA Consensus Bodies or by joining the ASTM standards process.
People can also apply to be parts of the Consensus Bodies that approve new standards language. The easiest and least time-consuming way to be involved is to comment on new language when a Consensus Body asks for public comment. Look for those opportunities on the websites of standards developers like ACCT.
Anyone working in or using a challenge course is strongly encouraged to read and comment on the drafts of standards when they are released for public comment. The timing and method of public comment is part of the ANSI process. Being involved in standards writing as a commentor or by suggesting language for a standard is a way to impact the industry globally.
Local action. You may want or need to have impact closer to home. You can do that by following ACCT’s Regulation Map blog (acctregmap.org), where ACCT posts notices of new regulatory efforts in North America. When a regulatory change or adoption process begins in your area, you can be part of it. You can testify at a hearing, provide public comment to draft language, and attend advisory board meetings. Attending meetings is a way to not only be known, but also to hold officials accountable.
The regulatory forest consists of the laws, passed by elected officials, that enable state staff and volunteers to write regulation. Regulations are the rules used to reach the goals enshrined in the laws. Standards are often used in the regulation to provide detail and specificity to the rules for each industry.
You can, and should, engage in the process. Like Dorothy stepping into the woods in Oz, you may find that familiarity helps make it all less scary.
Scott Andrews was a facilitator, program manager, owner operator, and ACCT Professional Vendor Member before jumping headfirst into the regulatory forest as policy director at ACCT. He can be reached at [email protected].
