Taking Action Before or After a Rulemaking or Bill is Proposed Warren Hoemann Senior Vice President – Industry Affairs American Trucking Associations

Three Topics for Today: Boards of Directors and the movie “Strangers On A Train” Boards of Directors and the movie “Strangers On A Train”

Three Topics for Today: Boards of Directors and the Movie Boards of Directors and the Movie “Strangers On A Train” “Strangers On A Train” Monster Movies and “The Wizard of Oz” Monster Movies and “The Wizard of Oz”

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

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

Lessons from Topic One: Legislatures and Regulatory Agencies determine your company’s future as much as any Board of Directors Legislatures and Regulatory Agencies determine your company’s future as much as any Board of Directors They will act, with or without knowledge They will act, with or without knowledge Don’t be a stranger Don’t be a stranger

Topic Two: Monster Movies and “The Wizard of Oz” 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 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 EnergyAppropriations Homeland Security and Government Affairs

The Life of a Legislator Very busy. Keep your communication on point. Very busy. Keep your communication on point. Dependent on staff. Help staff do their job better. Dependent on staff. Help staff do their job better. Limited subject matter depth. Clear, factual explanations are best. Limited subject matter depth. Clear, factual explanations are best. Driven by re-election. Constituents are the best messengers. Driven by re-election. Constituents are the best messengers.

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

The “Fourth Branch” Most administrative agencies are part of the Executive Branch Most administrative agencies are part of the Executive Branch Agencies are empowered by Congress to implement legislative commands through rules Agencies are empowered by Congress to implement legislative commands through rules Agencies interpret and enforce compliance with the rules Agencies interpret and enforce compliance with the rules

Before Rulemaking Agencies can only do what Congress empowers them to do Agencies can only do what Congress empowers them to do Agencies must conduct rulemakings in accordance with Congress’s procedural instructions Agencies must conduct rulemakings in accordance with Congress’s procedural instructions Agencies typically have their own detailed rules governing rulemakings Agencies typically have their own detailed rules governing rulemakings

Initiating a Rulemaking Congressional command Congressional command Agency/administration priorities Agency/administration priorities Petitions or Litigation Petitions or Litigation

Keeping the Public Informed Annual Regulatory Plan Annual Regulatory Plan Biannual Regulatory Agenda Biannual Regulatory Agenda

Preliminary Steps Internal discussions and discussions with stakeholders Internal discussions and discussions with stakeholders Optional Advance Notice of Proposed Rulemaking (ANPRM) to invite participation in shaping of the proposed rule 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 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 Costs and benefits of the potential rule and of alternatives Secondary effects (e.g. compliance burdens, privacy implications, environmental impact) Secondary effects (e.g. compliance burdens, privacy implications, environmental impact) Relevant executive orders and administration policies Relevant executive orders and administration policies Congressional politics Congressional politics

Notice of Proposed Rulemaking Publication of NPRM in Federal Register Publication of NPRM in Federal Register Specifies public comment period (usually at least 30 days, often longer) 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!) Agency required to review and consider public comments (unless they’re filed late!) Listening sessions common for important rules Listening sessions common for important rules Agency often modifies proposed rule as appropriate 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 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 Agency reviews and approves final rule OIRA reviews and approves final rule OIRA reviews and approves final rule Final rule is published in the Federal Register Final rule is published in the Federal Register Generally not effective until at least 30 days (60 days for “significant” rules), often longer Generally not effective until at least 30 days (60 days for “significant” rules), often longer New rule incorporated into Code of Federal Regulations New rule incorporated into Code of Federal Regulations

Other Rulemakings Interim Final Rule Interim Final Rule Direct Final Rule Direct Final Rule Guidance/Interpretive Rules/Policy Statements Guidance/Interpretive Rules/Policy Statements

Challenging Rules Courts grant a high level of deference when reviewing agency rulemakings Courts grant a high level of deference when reviewing agency rulemakings Courts consider whether: Courts consider whether: The agency acted without required notice-and- comment process The agency acted without required notice-and- comment process The rule is unconstitutional The rule is unconstitutional The rule was contrary to/ignored Congress’s instructions The rule was contrary to/ignored Congress’s instructions The rule was “arbitrary, capricious, or an abuse of discretion” The rule was “arbitrary, capricious, or an abuse of discretion”

Lessons from Topic Two: Understanding the process removes the fear Understanding the process removes the fear The process will tell you when and how to respond and what topics to cover The process will tell you when and how to respond and what topics to cover You have the knowledge; learn the language You have the knowledge; learn the language

Topic Three: Vladimir Putin and Free Speech in Russia Vladimir Putin and Free Speech in Russia

Lessons from Topic Three: Walk your talk Walk your talk Strength in numbers Strength in numbers Use authority where available Use authority where available

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

Questions? Warren Hoemann Senior Vice President – Industry Affairs American Trucking Associations 950 N. Glebe Road, Suite 210 Arlington, VA Office: (703) Cell: (703)