Taking ActionBefore or After a Rulemaking or Bill is

Proposed

Warren HoemannSenior Vice President – Industry Affairs

American Trucking Associations

Three Topics for Today:

Boards of Directors and the movie “Strangers On A Train”

Three Topics for Today:

Boards of Directors and the Movie “Strangers On A Train” Monster Movies and “The Wizard of Oz”

Three Topics for Today:

Boards of Directors and the Movie “Strangers On A Train” Monster Movies and “The Wizard of Oz” Vladimir Putin and Free Speech in Russia

Topic One:

Boards of Directors and the Movie “Strangers On A Train”

Lessons from Topic One:

Legislatures and Regulatory Agencies determine your company’s future as much as any Board of Directors

They will act, with or without knowledge Don’t be a stranger

Topic Two:

Monster Movies and “The Wizard of Oz”

The “First Branch” of Government

It’s not the “I Am a Bill” process you learned in junior high civics

-- few bills are “stand alone” measures-- party and committee politics, election timing often matter as much as merits

The Levers of Government

Key Committees for Trucking: House:

Transportation and Infrastructure

Ways and Means

Energy and Commerce

Appropriations

Homeland Security

Small Business Senate:

Environment and Public Works

Commerce, Science and Transportation

Energy

Appropriations

Homeland Security and Government Affairs

The Life of a Legislator

Very busy. Keep your communication on point. Dependent on staff. Help staff do their job

better. Limited subject matter depth. Clear, factual

explanations are best. Driven by re-election. Constituents are the

best messengers.

The Early Bird…

Become a familiar name Show interest in your legislator Be reliable and responsive Always coordinate with your association Keep the door open

The “Fourth Branch”

• Most administrative agencies are part of the Executive Branch

• Agencies are empowered by Congress to implement legislative commands through rules

• Agencies interpret and enforce compliance with the rules

Before Rulemaking

• Agencies can only do what Congress empowers them to do

• Agencies must conduct rulemakings in accordance with Congress’s procedural instructions

• Agencies typically have their own detailed rules governing rulemakings

Initiating a Rulemaking

• Congressional command• Agency/administration priorities• Petitions or Litigation

Keeping the Public Informed

• Annual Regulatory Plan• Biannual Regulatory Agenda

Preliminary Steps

• Internal discussions and discussions with stakeholders

• Optional Advance Notice of Proposed Rulemaking (ANPRM) to invite participation in shaping of the proposed rule

• Office of Information & Regulatory Affairs (OIRA) review of “significant” proposals

Agency Considerations in Developing a Rule

• Costs and benefits of the potential rule and of alternatives

• Secondary effects (e.g. compliance burdens, privacy implications, environmental impact)

• Relevant executive orders and administration policies

• Congressional politics

Notice of Proposed Rulemaking

• Publication of NPRM in Federal Register• Specifies public comment period (usually at

least 30 days, often longer)

Comment Period

• Agency required to review and consider public comments (unless they’re filed late!)

• Listening sessions common for important rules• Agency often modifies proposed rule as appropriate• Possible Supplemental Notice and further opportunity

for public comment if the agency needs to make changes outside the scope of the original proposal

Final Rule

• Agency reviews and approves final rule• OIRA reviews and approves final rule• Final rule is published in the Federal Register• Generally not effective until at least 30 days

(60 days for “significant” rules), often longer• New rule incorporated into Code of Federal

Regulations

Other Rulemakings

• Interim Final Rule• Direct Final Rule• Guidance/Interpretive Rules/Policy Statements

Challenging Rules

• Courts grant a high level of deference when reviewing agency rulemakings

• Courts consider whether:• The agency acted without required notice-and-

comment process• The rule is unconstitutional• The rule was contrary to/ignored Congress’s

instructions• The rule was “arbitrary, capricious, or an abuse

of discretion”

Lessons from Topic Two:

Understanding the process removes the fear The process will tell you when and how to

respond and what topics to cover You have the knowledge; learn the language

Topic Three:

Vladimir Putin and Free Speech in Russia

Lessons from Topic Three:

Walk your talk Strength in numbers Use authority where available

Three Topics Summarized:

Boards of Directors and the Movie “Strangers On A Train” Monster Movies and “The Wizard of Oz” Vladimir Putin and Free Speech in Russia

Questions?

Warren HoemannSenior Vice President – Industry Affairs

American Trucking Associations950 N. Glebe Road, Suite 210

Arlington, VA 22203Office: (703) 838-7956Cell: (703) 851-6652

whoemann@trucking.org