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Regulatory Report


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November 16, 2017

As mentioned in the previous additions of the Report, due to tax happenings that your author is obliged to cover, schedule adjustments were required. Therefore, the following covers the time period form November 4-16. Due to the Thanksgiving holiday, the next Regulatory Report will be sent out on November 30.

It’s Week 43 of the Trump presidency. We have reached Thanksgiving recess, and there are only 8 legislative days before the CR expires on December 8.

Today, the FCC voted to relax its rules on broadcast ownership. It eliminated the ban on cross-ownership of a tv station and a newspaper in the same media market. Additionally, the Commission voted to allow stations to jointly sell advertising and for media companies to buy multiple stations in the same market.

The fifth round of NAFTA negotiations is currently underway in Mexico City. Negotiations are will take place through Tuesday, November 21

PRESIDENTIAL ACTION

During this time period, President Trump signed no Executive Orders.

RULEMAKING PROCESS/AGENCY ACTION

Centers for Disease Control and Prevention

The CDC released a request for nominations for those wishing to serve as members of the World Trade Center Health program Scientific/Technical Advisory Committee (STAC), which is made up of 17 members including experts, in among other fields, epidemiology, toxicology, mental health, and occupational medicine. Nominations must be received by January 26, 2018.

Consumer Financial Protection Bureau

In a final rule, the CFPB issued regulations creating consumer protections for certain consumer credit products and the official interpretations of the rule. The rule “identifies it as an unfair and abusive practice for a lender” to make balloon-payment loans, including payday and vehicle title loans, “without reasonably determining that consumers have the ability to repay the loans according to their terms.”

CFPB, in conjunction with the Board of Governors of the Federal Reserve System and the Office of the Comptroller of the Currency, released a final rule on amendments to the official interpretations for their regulations that implement section 129H of the Truth in Lending Act. The rule will be effective as of January 1, 2018.

The Bureau, in conjunction with the Board of Governors of the Federal Reserve System, released a final rule on amendments to the official interpretations and commentary for the agencies’ regulations that implement the Consumer Leasing Act. The rule will be effective as of January 1, 2018.

The CFPB, in conjunction with the Board of Governors of the Federal Reserve System, released a final rule on amendments to the official interpretations for their regulations on the Truth in Lending Act, specifically those that deal with the Consumer Price Index for Urban Wage Earners and Clerical Workers. The rule will be effective as of January 1, 2018.

Department of Agriculture

Secretary Perdue announced that U.S. agricultural exports climbed nearly $10.9 billion in 2017 to $140.5 billion in FY17. This comes on the heels of the Economic Research Service issued a Global Landscape of Agricultural Trade 1995-2014. The report shows that trade grew on average of 3.5 percent each year and in all major categories.

The Animal and Plant Health Inspection Service is withdrawing a proposed rule that would have revised the importation, interstate movement, and environmental released of certain genetically engineered organisms. The rule was originally published on January 19.

The Agriculture Marketing Service is delaying the effective date of the Organic Livestock and Poultry Practices final rule, which was published on January 19, until May 14, 2018.

The National Institute of Food and Agriculture withdrew its notice of proposed rulemaking, which was published on April 29, 2003. Additionally, NIFA announced a proposed rule to revise its regulations “for the purpose of implementing the statutory amendments applicable to the matching requirements for Federal agricultural research and extension capacity (formula) funds for 1890 land-grant institutions (LGUs)… and to remove the term ‘qualifying educational activities.’” Comments must be received by January 12, 2018.

Department of Commerce

In response to the National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba (dated June 16), the Department issued a final rule amending the licensing policy for Cuba and portions of three license exceptions available for exports and reexports to Cuba.

The Bureau of Economic Analysis issued a notice of proposed rulemaking that would renew reporting requirements for the mandatory BE-120 Benchmark Survey of Transactions in Selected Services and Intellectual Property with Foreign Persons. All comments are due by January 14.

The Department announced an affirmative preliminary determination in the antidumping duty investigation of tool chests and cabinets from China and Vietnam. The preliminary determination found that exporters have sold the products at rates of 90.4 to 168.93 and 230.31 percent below fair value, respectively.

The Department announced an affirmative final determination in the countervailing duty investigation of imports of biodiesel from Argentina and Indonesia, finding that they received countervailable subsidies of 71.45 to 72.28 percent and 34.45 to 64.73 percent, respectively.

The Department announced an affirmative final determination in the antidumping and countervailing duty investigation on imports of hardwood plywood products from China. The investigation found that the product was sold at 183.36 percent less than fair value and that China is providing unfair subsidies to producers at rates ranging from 22.98 to 194.9 percent.

Department of Education

The Office of Postsecondary Education announced a final rule to reflect the HEAL Program’s transfer from the Department of Health and Human Services to the Department of Education. The rule would facilitate the servicing of HEAL loans to reflect the transfer.

Department of Homeland Security

DHS Secretary Elaine Duke announced that she would terminate the Temporary Protected Status (TPS) designation for Nicaragua with a delayed effective date of 12 months “to allow for an orderly transition before the designation terminates on January 5, 2019.” She also has postponed the decision of the TPS designation for Honduras, which will now expire on July 5, 2018.

Department of the Interior

The Fish and Wildlife Service issued a final rule increasing the hunting activity in nine refuges, one open refuge to sport fishing, and adding pertinent refuge-specific regulations for other NWRs.

The Fish and Wildlife Service announced that it was establishing the International Wildlife Conservation Council and seeking nominations for individuals to serve on it. The Council will advise the federal government on “increasing public awareness domestically regarding conservation, wildlife law enforcement, and economic benefits that result from U.S. citizens traveling to foreign nations to engage in hunting.” Comments on the establishment of the Council must be received by November 23, and nominations for the Council must be received by December 8.

Department of Labor

The Occupational Safety and Health Administration issued a final rule delaying its deadline for employers to ensure that crane operators are certified by one year until November 10, 2018.

The Veterans’ Employment and Training Service (VETS) issued a final rule setting out the criteria for the different categories and levels of HIRE Vets Medallion Awards, the award application process, and the award fees. The rule is effective as of January 12. 2018.

Department of Transportation

DOT released a final rule amending its drug testing program to both add and remove certain drugs on its drug testing panel. Additionally, it clarifies drug-testing program provisions and definitions, makes technical amendments, and removes the requirement for employers and Third Party Administrators to submit blind specimens.

Department of the Treasury

The Office of Foreign Assets Control issued a final rule in response to the National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba. This rule implements changes to the authorizations for travel to Cuba and related transactions and restrict certain financial transactions.

The Department issued an interim rule amending the Treasury’s Acquisition regulation for the “purposes of supplementing the Federal Acquisition Regulation” and amending the DTAR by adding a subpart on contractor compliance.

Department of Veterans Affairs

The VA issued a final rule to amend its medical regulations by establishing the eligibility requirements that ecclesiastical endorsing organizations must meet in order to provide ecclesiastical endorsements of individuals seeking employment as VA chaplains. The rule is effective as of December 8.

Environmental Protection Agency

In a proposed rule, The EPA announces its intent to repeal the emission standards and other requirements for heavy-duty glider vehicles, glider engines, and glider kits based on a proposed interpretation of the Clean Air Act. Comments must be received by January 5, 2018, and EPA will hold a public hearing on the issue on December 4.

The EPA announced that it would withdraw its direct final rule on updating the NAICS codes subject to reporting under the TRI to reflect the 2017 OMB NAICS code revision and proceed with the proposed rule and comment period.

The EPA announced that there is a data availability for two proposed rules: the proposed rule titled “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources: Stay of Certain Requirements” and the proposed rule titled “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources: Three Month Stay of Certain Requirements.” Comments must be received by December 8.

The EPA issued a proposed rule on October 16 on the Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electricity Utility Generating Units (the Clean Power Plan). A public hearing will be held on November 28, and the deadline for written comments on the proposed rule is extended until January 16.

In a final rule, the EPA establishes initial air quality designations for the 2015 primary and secondary national ambient air quality standards for ozone. The rule is effective as of January 15, 2018.

Federal Aviation Administration (FAA)

The FAA and the Department of Transportation announced a new pilot program that “encourages State, local, and tribal governments, in partnership with UAS operators and other private sector stakeholders, to conduct advanced operations safely and with public support in affected communities.” Those interested must declare an intent to participate by November 28.

Federal Communications Commission

The FCC adopted “new rules to let television broadcasters use the Next Generation broadcast television transmission standard” (ATSC 3.0) on a voluntary, market-driven basis.

The FCC announced a proposed rule to remove the domestic coverage requirement for non-geostationary-satellite orbit, fixed-satellite service satellite systems. Comments are due by December 30.

The Commission announced a notice of proposed rulemaking on whether to eliminate Form 325, which “collects information about cable system operations.” 

Federal Election Commission

The FEC reopened the comment period on the advanced notice of proposed rulemaking on whether to begin a rulemaking to revise its regulations concerning disclaimers on certain internet communications. The comment period will now run until November 13.

Federal Energy Regulatory Commission

FERC is both granting and denying parts of a request for rehearing and classification of its determinations in Order 831, which “amended its regulations to address incremental energy offer caps in markets operated by regional transmission organizations and independent system operators.” This rule is effective as of January 15, 2018.

Federal Highway Administration

FHWA extended the comment period for a proposed rulemaking on Assessing Performance of the National Highway System, Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality Improvement. Comments on the rulemaking, which was originally published on October 5, are now due by November 15.

Federal Reserve System

The Fed released a final rule amending Regulation D, Reserve Requirements of Depository Institutions, to reflect the annual indexing of the reserve requirement exemption amount and the low reserve tranche for 2018. The rule will be effective as of December 8.

Federal Trade Commission

The FTC issued a notice of proposed rulemaking to amend the Energy Labeling Rule by updating “ranges of comparability and unit energy cost figures on EnergyGuide labels for dishwashers, furnaces, room air conditioners, and pool heaters. Comments must be received by December 4.

Food and Drug Administration (FDA)

The FDA released proposed draft guidance for Menu Labeling: Supplemental Guidance for Industry. The draft guidance is for comment purposes only. Comments should be submitted by January 8, 2017.

National Oceanic and Atmospheric Administration

The NOAA, in conjunction for the National Marine Fisheries Service, issued a request for comments on their proposed draft national Procedural Directive “clarifying the process for eligible permit applicants to obtain releasable marine mammals for public display purposes under the Marine Mammal Protection Act. Comments must be received by December 15.

National Park Service

The National Park Service announced it was establishing the “Made in America” Outdoor recreation Advisory Committee and is seeking nominations to serve on the Committee. The Committee will advise the Secretary of the Interior on “the public-private partnerships across all public lands, with the goal of expanding access to and improving infrastructure on public lands and waterways.” Comments on the establishment of the Committee must be received by November 23, and nominations for the Committee must be received by December 8.

The National Park Service is seeking nominations for individuals to be appointed to the National Park System Advisory Board. Nominations must be postmarked by December 16.


November 3, 2017

Please excuse the fact that Reg Report is a day later than normal. Your writer spent all day yesterday buried in the House tax plan. There may be similar schedule adjustments in the coming weeks due to tax happenings in Congress.

It’s Week 41 of the Trump presidency. There are 8 days when both the House and Senate are in session before the Thanksgiving recess, and 16 legislative days before the CR expires on December 8.

Before the President left today for an extended trip through Asia, the Department of Commerce’s International Trade Administration released its Non-Market Economy Review of China and announced that it would continue to view the country as a non-market economy for purposes of the Department’s antidumping analysis.

Unrelated to its current NAFTA proceedings, the Office of the United States Trade Representative is looking for nominations of individuals to serve on binational panels who review final determinations of antidumping or countervailing duty proceedings and amendments to AD/CVD statutes. Those selected would serve from April 1, 2018 through March 31, 2019. Applications must be received by USTR by November 17 and can be submitted following these instructions beginning on Monday.

Today, the Trump Administration released the National Climate Assessment, as required by the Global Change Research Act of 1990. Though the Administration and various cabinet heads, have offered takes on climate change that range from skeptical to outright dismissive, the Assessment contradicts all of those positions. The report finds “no convincing alternative explanations supported by the extent of observational evidence” that anything other than human activity has “been the dominant cause of the observed warning since the mid-20th century,” while warning that without “major reductions in emissions” global temperatures would continue to significantly rise.

CONGRESSIONAL REVIEW ACT (CRA)

The President signed H.J. Res. 111, disapproving of the Consumer Financial Protection Bureau’s Arbitration Agreements Rule, which was released on July 17, 2017 into law on November 1. The rule would have made it easier for consumers to sue credit institutions and banks by forbidding institutions from imposing arbitration agreements on customers in financial contracts, thus allowing consumers to join class-action lawsuits.

PRESIDENTIAL ACTION

This week, President Trump signed no executive orders.

The White House did release its Fentanyl Safety Recommendations for Fist Responders, which provide unified, scientific, evidence-based recommendations that fall into three categories: (1) actions first responders can take to protect themselves from exposure; (2) actions first responders can take when exposure occurs; and (3) actions first responders can take when they or their partners exhibit signs of intoxication.

RULEMAKING PROCESS/AGENCY ACTION

Centers for Disease Control and Prevention

The CDC released a request for information to inform future activities on how to efficiently and cost effectively help, using evidence-based treatment options, assist users in stopping their tobacco usage.

Centers for Medicare & Medicaid Services

CMS released a final rule updating and revising the end-stage renal disease (ESRD) prospective payment system for 2018 and also updates the payment rate for renal dialysis services furnished by an ESRD facility to those with acute kidney injury. Finally, the rule sets out requirements for the ESRD Quality Incentive Program for years 2019-2021. The rule is effective as of January 1, 2018.

The Centers for Medicare & Medicaid Services announced a final rule updating the home health prospective payment system payment rates, including the national, standardized 60-day episode payment rates, the pay-per-visit rates, and the non-routine medical supply conversion factor, among other issues. The regulation will take effect on January 1, 2018.

CMS is requesting nominations for membership on the Medicare Evidence Development & Coverage Advisory Committee, which provides advice and guidance to the HHS Secretary and CMS Administrator on the adequacy of scientific evidence available to CMS in making coverage determinations under the Medicare program. Nominations must be received by November 27.

The Centers for Medicare & Medicaid Services released a final rule with a comment period revising the Medicare hospital outpatient prospective payment system and the Medicare ambulatory surgical center payment system. Comments on payment classifications must be received by December 31. The final rule will be effective as of January 1, 2018 unless otherwise noted.

CMS announced a final rule with comment period to provide updates on the second and future years of the Quality Payment Program for eligible clinicians under the Medicare Access and CHIP Reauthorization Act of 2015. They also released an interim final rule with comment period that addresses extreme and uncontrollable circumstances Merit-based Incentive Payment Systems clinicians may face as a result of the hurricanes this year. These provisions are effective as of January 1, 2018 and all comments must be submitted before that date.

The Centers for Medicare & Medicaid Services announced a final rule addressing changes to the Medicare physician fee schedule and other Medicare part b payment policies such as changes to the Medicare Shared Savings Program. The regulation will be effective as of January 1, 2018.

Commodity Futures Trading Commission (CFTC)

The CFTC issued an order to establish December 31, 2019 as the new de minimis threshold phase-in termination date, pursuant to the establishment of the de minimis exception to the swap dealer definition that the Commission established.

Copyright Royalty Board

The Board is soliciting comments on proposed rates and terms for use in certain works in connection with noncommercial broadcasting for the period beginning on January 1, 2018 and ending December 31, 2022. Comments must be received by November 29.

Department of Agriculture

The Department announced it was adopting a final rule establishing rules and procedures to govern formal rulemaking proceedings instituted by the Secretary and applies to rulemakings that are not subject to marketing orders or research and promotion orders. The rule will be effective as of December 3.

Department of Commerce

The Department announced an affirmative final determination in the antidumping and countervailing duty investigation of softwood lumber from Canada. The U.S. found that exporters from Canada have sold the product at rates of 3.2 to 8.89 percent below fair value and that Canada is providing unfair subsidies at rates between 3.34 and 18.19 percent.

The Department announced an affirmative preliminary determination in the countervailing duty investigation of fine denier polyester staple fiber from India and China, finding that they received countervailable subsidies of 7.18 to 9.86 percent and 41.73 and 27.64 percent, respectively. A final decision is expected on January 16, 2018.

The Department announced an affirmative preliminary determination in the antidumping duty investigation on exporters of aluminum foil from China. The investigation found that the product was sold at prices that resulted in preliminary dumping margins of 96.81 to 162.24 percent. A final determination is due February 23, 2018.

Department of Education

The Department announced that as part of its effort to reduce the regulatory burden on Americans it was withdrawing 600 pieces of subregulatory guidance that were either superseded by current law or no longer in effect. A complete list of out-of-date subregulatory guidance identified by the Department’s Regulatory Reform Task Force can be found here.

Department of Energy

The Department announced that it was re-opening the comment period and requesting information pertaining to the test procedures for distribution transformers. The comment period will now run through November 6 (it was originally slated to close on October 23).

The Department is seeking comment on petitions filed by the National Electrical Manufacturers Association and UL LLC requesting that the Department incorporate alternative test methods for its regulations for determining the energy efficiency of certain electric motors and small electric motors. Comments must be received by January 1, 2018.

Department of Health and Human Services

HHS released a proposed rule setting out payment parameters relating to risk adjustment and data validation programs; cost-sharing parameters and cost-sharing reductions; and user fees for the federally-facilitated exchanges and state-based exchanges under the Patient Protection and Affordable Care Act. The proposed rule also includes flexibility for Small Business Health Options Program exchanges, and various provisions related to them. Comments must be received by November 27.

Department of the Interior

The Bureau of Indian Affairs has issued an interim final rule delaying the deadline for complying with the requirement to collect data on proposed roads for the National tribal Transportation Facility Inventory. Comments must be received by November 30.

The Bureau of Land Management is requesting nominations for their Resource Advisory Councils, which provide advice and recommendations on land use planning and management of the National System of Public Lands. Nominations must be received by December 1.

Department of the Labor

The Department announced that it intends to undertake a new rulemaking with regard to overtime. On October 30, it filed a notice to appeal a District Court decision reached in August to the Fifth Circuit Court of Appeals. When the appeal is docketed, the Department (through the Department of Justice) will file a motion to hold the appeal in abeyance while the Department of labor undertakes further rulemaking to determine what the salary level should be.

Department of Transportation

DOT announced that it was reopening the comment period for its Notification of Regulatory review for an additional thirty days. The comment period will now end on December 1.

Department of Veterans Affairs

The VA issued a final rule to amend its regulations that govern homeless veterans in order to conform to recent statutory requirements. The changes would include amending the definition of homeless veterans and would increase the payment of per diem in cases where homeless veterans are placed into transitional housing that will become permanent housing.

Environmental Protection Agency

The EPA issued a proposed rule granting a petition filed by Blanchard refining Company LLC to exclude the residual solids generated from the reclamation of oil bearing hazardous secondary materials at the company’s refinery in Texas City, TX from the list of hazardous waste. Comments must be received by November 30, and a request for a hearing must be received by November 15.

Federal Aviation Administration (FAA)

The FAA, in conjunction with the National Park Service, is looking for applicants to serve on the National Park Overflights Advisory Group. Applications must be received by December 8.

Federal Communications Commission

The FCC announced a final rule amending its equipment authorization regulations. The rule will consolidate, simplify, and streamline certain procedures and removes the requirement to file the import declaration FCC Form 740 under certain conditions.

The Rural Broadband Auctions Task Force (in conjunction with the Wireline Competition Bureau and the Wireless Telecommunications Bureau) announced a proposed rule on parameters and procedures to implement the Mobility Fund Phase II challenge process. Comments must be received by November 8.

The FCC announced a final rule amending certain rules applying to AM broadcast stations using directional antenna arrays. The rule will be effective as of December 3.

Federal Deposit Insurance Corporation (FDIC)

The FDIC issued a final rule adding regulations to improve the resolvability of systemically important U.S. and foreign banking organizations, as well as enhancing the resilience of non-Federal Reserve State savings associations and state-chartered banks. The rule amends the definition of “qualifying master netting agreement,” among other provisions. The rule is effective January 1, 2018.

Federal Motor Carrier Safety Administration (FMCSA)

FMCSA and the Department of Transportation announced that the National Pork Producers Council has requested an exemption from the requirement that a motor carrier require each driver use an electronic logging device before December 28, 2017 to record the driver’s hours-of-service. FMCSA is soliciting comments of NPPC’s application for exemption, and comments must be received by November 30.

Food and Drug Administration (FDA)

The FDA released a proposed rule to revoke the regulation authorizing the use of health claims on the relationship between soy protein and coronary heart disease on the label or in the labeling of foods. Comments must be received by December 15.

The FDA is seeking nominations from industry organizations to serve as a nonvoting representative on the Pediatric Advisory Council. Nominations must be received by December 2.

National Credit Union Association

NCUA released a proposed rule amending its regulations on capital planning and stress testing for federally insured credit unions with assets in excess of $10 billion. Comments must be received by December 29.

National Highway Traffic Safety Administration

NHTSA released a final rule (in response to a petition for reconsideration for the Truck and Engine Manufacturers Association) for the FMVSS No. 136, Electronic stability control systems for heavy vehicles. NHTSA has granted the petition from EMA because “there is sufficient evidence to indicate that a larger lane width is needed for testing of long wheelbase truck tractors.” The rule is effective as of November 29.

National Science Foundation

NSF, in conjunction with NASA, NOAA, and the Department of Education, is currently seeking recommendations for membership on the Science, Technology, Engineering, and Mathematics (STEM) Education Advisory Panel. Nominations must be received by November 30.

Securities and Exchange Commission (SEC)

The SEC announced it was adopting an amendment to Rule 146 under Section 18 of the Securities Act of 1933 to “designate certain securities listed, or authorized for listing on Investors Exchange LLC as covered securities for purposes of Section 18(b) of the Securities Act.” The rule is effective as of November 29.

The SEC has released a proposed rule based on recommendations made in the Report on Modernization and Simplification of Regulation S-K, as required by the FAST Act. The amendments will modernize and simplify certain disclosure requirements in Regulation S-K. Comments must be received by January 1, 2018.


October 26, 2017

It’s Week 40 of the Trump presidency. There are 12 days when both the House and Senate are in session before the Thanksgiving recess, and 20 legislative days before the CR expires on December 8.

The internet of things working group, chaired by the National Institute of Standards and Technology is concluding its report on new guidelines to address the risk of internet-connected devices, and how these devices should be deployed and purchased. The report is expected to be released in early 2018.

CONGRESSIONAL REVIEW ACT (CRA)

Tuesday, the Senate passed H.J. Res. 111, disapproving of the Consumer Financial Protection Bureau’s Arbitration Agreements Rule, which was released on July 17, 2017. The rule would have made it easier for consumers to sue credit institutions and banks by forbidding institutions from imposing arbitration agreements on customers in financial contracts, thus allowing consumers to join class-action lawsuits. The Senate vote (51-50), required a tie-breaking vote from Vice President Mike Pence and followed a 231-190 vote in the House of Representatives. President Trump has indicated that he will sign the measure.

  • Treasury report on CFBP Arbitration Rule

PRESIDENTIAL ACTION

This week, President Trump signed two executive orders.

Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities (October 24)

The order marks the resumption of refugee admission, which had been halted by Executive order 13780, into the United States with some significant changes. Executive Order 13780 had mandated a 120-day review of the U.S. Refugee Admissions Program (USRAP), and a working group mad suggestions to the vetting process, which the Trump Administration says have been implemented. The Secretaries of State and Homeland Security are tasked with continuing to assess any risks that may be presented by those entering through USRAP. The increased scrutiny and restrictions apply to refugees from Syria, Yemen, North Korea, South Sudan, Libya, Mali, Egypt, Iran, Iraq, Sudan, and Somalia, and refugees from those countries will only be considered case-by-case.

Executive Order Amending Executive Order 13223 (October 20)

This executive order removes the restrictions placed by Executive order 13223 (signed on September 14, 2001) on recalling members of the armed services. It allows the secretaries of each branch of the armed service to recall retired service members to active duty,

Today, the President instructed the Department of Health and Human Services to declare a nationwide public health emergency regarding the opioid crisis.

RULEMAKING PROCESS/AGENCY ACTION

Department of Agriculture

The Agricultural Marketing Service issued a final rule establishing a de minimis quantity exemption threshold regarding a national research and promotion program for softwood lumber. The rule will be effective as of November 25.

The Rural Housing Service issued a final rule revising its existing regulations regarding financial reporting. Comments must be received by November 24.

The Animal and Plant Health Inspection Service is extending the comment period for its advance notice of proposed rulemaking on potential revisions to the licensing requirements under the Animal Welfare Act regulations. All comments are now due by November 2.

Department of Commerce

The Department of Commerce submitted a report to the Office of Management and Budget identifying and addressing regulatory burdens inside the Department that “encumber energy production, strangle economic growth, and prevent job creation. The report was mandated by the “Promoting Energy Independence and Economic Growth” executive order.

The Department announced an affirmative preliminary determination in the antidumping duty investigation of carbon and alloy steel wire rod from Italy, Korea, South Africa, Spain, Turkey, Ukraine, and the United Kingdom.

The Department announced an affirmative preliminary determination in the antidumping duty investigation of biodiesel from Indonesia and Argentina. The investigation found that exporters dumped their products at margins of 50.71 and 54.36 to 70.05 percent, respectively.

The Department announced that it had initiated an antidumping duty investigation into polytetrafluoroethylene (PTFE) resin from China and India is being dumped in the U.S., as well as a countervailing duty investigation into whether PTFE producers in India are receiving unfair subsidies.

Department of Defense

In accordance with the Enforcing the Regulatory Reform Agenda executive order, the DHA Subgroup of the DoD Task Force is requesting comment on existing TRICARE regulation that may be appropriate for repeal, replacement, or modification. The larger Task Force is also seeking comment on existing regulations for all of DoD that may fall into these same categories. Comments are due by January 2, 2018.

The Department is seeking feedback on the Section 809 Advisory Panel on Streamlining and Codifying Acquisition Regulations. The Panel will provide a final report to Congress and the Secretary of Defense in 2019.

Department of Education

The Department announced an interim final rule (without first putting out an advance notice of proposed rulemaking citing the Administrative Procedure Act) delaying the effective date of portions of the Student Assistance General Provisions, Federal Perkins Loan Program, Federal Family Education Loan Program, William D. Ford Federal Direct Loan Program, and Teacher Education Assistance for College and Higher Education Grant program until July 1, 2018. The Department is also seeking to push the effective date for other provisions of these programs until July 1, 2019. The Department is asking that comments be filed by November 23.

Department of Energy

The Department released its final report, as mandated by the “Promoting Energy Independence and Economic Growth” executive order.

Department of Health and Human Services

HHS is requesting information from faith-based organizations and other interested parties on how to best identify and remove regulatory or other barriers in order for these institutions to participate in HHS-funded or regulated programs, strengthen partnerships with faith-based organizations to improve service delivery to the American people, and ensure faith-based organizations are affirmatively accommodated and not excluded from publicly funded or conducted programs or activities because of HHS requirements that burden or interfere with their religious character or exercise.” Comments are due by November 24.

Department of Housing and Urban Development

HUD is seeking public comment on the new federal lead strategy developed by the President’s Task Force on Environmental Health Risks and Safety Risks to Children. Comments are due by November 23.

Department of the Interior

The Department released its final report, as mandated by the “Promoting Energy Independence and Economic Growth” executive order. The report detailed a number of burdens and actions already taken by the Department of combat some of the issues.

Department of Transportation

President Trump and Transportation Secretary Elaine Chao announced the Unmanned Aircraft Systems Integration Pilot Program, which implements a directive by the President to “accelerate the safe integration of UAS into the national airspace and to realize the benefits of unmanned technology in our economy.”

Department of the Treasury

The Department released a report examining the current regulatory framework for asset management and insurance industries.

The Office of Foreign Assets Control sanctioned seven additional individuals and three entities of the North Korean regime. It also imposed sanctions on eight individuals and one entity of ISIS and al-Qaeda in the Arabian Peninsula.

The Department, in conjunction with the Federal Reserve System and the FDIC released a notice of proposed rulemaking following a report to Congress in March 2017 where they committed to “meaningfully reduce regulatory burden, especially on community banking organizations.” The changes include simpler regulatory capital treatment for certain assets. Comments must be received by December 26.

The Comptroller of the Currency, in conjunction with the Board of Governors of the Federal Reserve System, the FDIC, and the National Credit Union Administration, used their authority under Section 2 of the Depository Institutions Disaster Relief Act of 1992 to grant temporary exceptions to FIRREA appraisal requirements to areas that have been hit been Hurricanes Harvey, Maria, and Irma. The exceptions expire in 2020.

Department of Veterans Affairs

The VA issued a final rule to “affirm its adjudication regulations regarding compensation for disabilities resulting from undiagnosed illnesses suffered by veterans who served in the Persian Gulf War.”

Environmental Protection Agency

The EPA issued a direct final rule on a revision to the formaldehyde standards for composite wood products final rule, published on December 12, 2016. The rule will be effective as of December 9 unless significant adverse comments are received before November 9.

The EPA is withdrawing its direct final rule on the National Emission Standards for Hazardous Air Pollutants for Wool Fiberglass Manufacturing published on July 27, 2017 

Federal Communications Commission

The FCC announced that a petition to reconsider its rulemaking proceeding on the Interstate Telecommunications Relay Service Advisory Council. Comments must be filed by November 9.

Federal Housing Administration

The FHA is extending its initial 90-day foreclosure moratorium for those homeowners impacted by Hurricanes Maria, Irma, and Harvey for an additional 90 days.

National Highway Traffic Safety Administration

NHTSA released a final list of vehicles not originally manufactured to conform to the Federal Motor Vehicle Safety Standards to be eligible for importation.

National Oceanic and Atmospheric Administration

NOAA and the National Marine Fisheries Service are seeking nominations for individuals interested in serving on the Atlantic Highly Migratory Species Advisory Panel. Those chosen will serve a 3-year term. Nominations must be received by November 22.

Small Business Administration

The SBA released a direct rule amending the definition of a “qualified census tract” in the HUBZone Program regulations. The rule is effective as of December 22 unless “significant adverse comment” is received before November 22.

United States Trade Representative

USTR Lighthizer announced a new effort to ensure that beneficiary countries meet the eligibility criteria of the Generalized System of Preferences trade preference program.


October 19, 2017

It’s Week 39 of the Trump presidency. There are 16 days when both the House and Senate are in session before the Thanksgiving recess, and 24 legislative days before the CR expires on December 8.

The fourth round of NAFTA renegotiations in Washington, D.C. concluded on Tuesday will all signs pointing to the process being in serious trouble. The start of the fifth round of negotiations have been delayed and will now take place in Mexico City November 17-21. Additionally, the sixth and seventh rounds will longer take place before the end of 2017 and will instead be postponed until the first quarter of 2018.

PRESIDENTIAL ACTION

There were no Executive Orders signed this week.

RULEMAKING PROCESS/AGENCY ACTION

Centers for Disease Control and Prevention

The CDC is seeking nominations for membership on the Disease, Disability, and Injury Prevention and Control Special Emphasis Panel. All nominations must be received by December 15.

Coast Guard

The Coast Guard released updated alternative planning criteria national guidelines for vessel response plans (VRPs). Requests for an extension of a current plan may be approved for up to six months.

Commodity Futures Trading Commission

The CFTC released a notification of determination on the margin requirements for uncleared swaps applicable to certain swap dealers and major swap participants, as requested by the European Commission. The CFTC found that the margin was comparable in outcome to those under the Commodity Exchange Act and Commission regulations.

Consumer Financial Protection Bureau

The CFPB issued a proposed rule and request for comment on amendments to certain Regulation Z mortgage servicing rules issued in 2016 relating to the timing for servicers to transition to providing modified or unmodified periodic statements and coupon books in connection with a consumer’s bankruptcy case. Comments are due by November 17.

Department of Agriculture

The Grain Inspection, Packers and Stockyards Administration announced that it was withdrawing the interim final rule (from December 20, 2016) addressing the scope of sections 220(a) and (b) of the Packers and Stockyards Act.

Department of Commerce

The Economic Development Administration issued a final rule eliminating the regulations implementing the Community Trade Adjustment Assistance Program. The Program was eliminated by Congress in 2011.

The Department announced that it had initiated an antidumping duty investigation into Polyethylene Terephthalate (PET) Resin from Brazil, Indonesia, Korea, Pakistan, and Taiwan.

Department of Energy

The Small Business Innovation Research and Small Business Technology Transfer programs issued a $23 million FY18 Funding Opportunity Announcement to establish technical feasibility of new innovations that advance the mission of the Office of Science.

The Department announced $26 million in funding through the Office of Fossil Energy’s Novel and Enabling Carbon Capture Transformational Technologies. The opportunities will focus on the development of novel transformational materials and processes and enabling technologies to improve carbon capture systems.

Department of the Interior

The Bureau of Indian Affairs is seeking nominations for the Advisory Board for Exceptional Children. Nominations are due by December 15.

Interior Secretary Zinke and Acting Director of the National Park Service Mike Reynolds announced an action plan to combat the “widespread and pervasive” culture of harassment and discrimination.

Department of Labor

Labor Secretary Alexander Acosta, pursuant to the Presidential Executive Order Expanding Apprenticeships in America, announced the members of the Task Force on Apprenticeship Expansion, which represents all stakeholders, including labor, companies, educational institutions, and trade and industry groups. Secretary Acosta will serve as the Chair of the Task Force, while Education Secretary Betsy DeVos and Commerce Secretary Wilbur Ross will serve as Co-Chairs.

Department of the Treasury

The Department announced that it was withdrawing a notice of proposed rulemaking concerning the estate, gift and generation-skipping transfer tax treatment of lapses of liquidation rights in family-controlled entities, as well as the valuation of interests in family-controlled corporations and partnerships for estate, gift, and GST tax purposes. The proposed rulemaking was originally released on August 4, 2016.

The Department of the Treasury issued final regulations under section 597 of the IRS Code addressing the income tax treatment of transactions in which federal financial assistance is provided to banks and domestic building and loan associations.

The Department announced that it was withdrawing the proposed rulemaking regarding the definition of a political subdivision for purposes of tax-exempt bonds.

The Department released its report to Congress on developments in international economic and exchange rate policies as part of its obligations under the Omnibus Trade and Competitiveness Act of 1988.

The Office of Foreign Assets Control (OFAC) designated Iran’s Islamic Revolutionary Guard Corps (IRGC) under the global terrorism Executive Order 13224 and the Countering America’s Adversaries Through Sanctions Act.

Department of Veterans Affairs

The VA issued a proposed rule to revise its medical regulations related to providing prosthetic and rehabilitative items as medical services to veterans. Comments must be received by December 15.

Environmental Protection Agency

The EPA released a proposed rule to repeal the Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units (EGUs), commonly referred to as the Clean Power Plan, which was released on October 23, 2015. Requests for a public hearing must be received by October 31. Comments must be received by December 15.

The EPA is promulgating significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 29 chemical substances that were the subject of premanufacture notices. The rule will be effective as of December 18.

Federal Communications Commission

The FCC issued a final rule on modernizing the common carrier rules. It eliminates certain rules from which the Commission has granted unconditional forbearance for all carriers, and eliminates references to telegraph service from certain sections of the Commission’s rules. 

Food and Drug Administration

The FDA is seeking nominations for individuals to serve on its advisory committees and panels. Nominations must be received by November 30.

Patent and Trademark Office

The PTO, as a result of Executive order 13777, issued a proposed rule to amend the Rules of Practice in Trademark Cases to remove the rules governing trademark interferences. Comments must be received by November 17.

Pipeline and Hazardous Materials Safety Administration

PHMSA published a revised Regulatory Impact Analysis associated with the electronically controlled pneumatic brake provision of the May 2015 final rule entitled “Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains.” Comments must be received by November 1.

PHMSA announced that it was extending the public comment period on the “Pipeline Safety: Underground Natural Gas Storage Facilities,” interim final rule, which was published on December 19,2016. Comments must be received by November 18.

Small Business Administration

The Small Business Administration announced the SBA’s Express Bridge Loan Pilot Program, which will provide “expedited guaranteed bridge loan financing for disaster-related purposes to small businesses located in communities impacted by a Presidentially-declared disaster.” The Pilot will be available through September 30, 2020.

JUDICIARY

Two federal judges, one in Maryland and one in Hawaii, have once again placed a halt on most of the Trump Administration’s travel ban (version 3.0). The ruling blocks the administration from preventing nationals from Chad, Iran, Libya, Yemen, Somalia, and Syria from entering the country, but it leaves in place the ban’s implementation for citizens of Venezuela and North Korea.


October 12, 2017

Due to a technical issue, Regulatory Report only went out to a small number of subscribers. Therefore, the information below covers both last week and this week, September 29-October 12.

It’s Week 38 of the Trump presidency. There are 16 days when both the House and Senate are in session before the Thanksgiving recess, and 24 legislative days before the CR expires on December 8.

The fourth round of NAFTA renegotiations in Washington, D.C. began on Wednesday and will run through October 17. This round of negotiations will cover more than two dozen topics. The chapters on small- and medium-sized enterprises, as well as the chapter on competition, have been officially closed. In a briefing with Ways and Means Members last week, USTR Lighthizer, in a response to raised concerns about provisions the U.S. was advocating including a 5-year sunset clause and an opt-in ISDS mechanism, stated that he only had an “audience of one” that he was concerned about. Rules of origin are expected to be discussed on three days, and multiple reports indicate that USTR will table a proposal for automobile rules of origin that include a 50 percent domestic content requirement. Among the other topics expected to be covered include telecommunications (Thursday and Friday), Customs (Friday and Saturday), digital trade (Saturday and Sunday), agriculture (Saturday and Sunday).

PRESIDENTIAL ACTION

During the least two weeks, President Trump issued three Executive Orders.

Promoting Healthcare Choice and Competition Across the United States (October 12)

The order has three addresses three main points in an attempt to expand access to affordable healthcare options. It directs the Secretary of Labor to consider a broader interpretation of the Employee Retirement Income Security Act (ERISA), which governs how employers offer health and retirement plans to their employees. It directs the Departments of Treasury, Labor, and Health and Human Services to consider expanding coverage through short-term limited duration insurance. Finally, it directs the Department of Treasury, Labor, and HHS to consider changes to Health Reimbursement Arrangements to give employers more flexibility. More complete coverage can be found in Prime’s Healthcare Today, put together by our firm’s healthcare experts.

Revocation of Executive Order Creating Labor-Management Forums (September 29)

The order revokes Executive Order 13522- Creating Labor-Management Forums to improve delivery of Government Services, which was signed on December 9, 2009.

Continuance of Certain Federal Advisory Committees (September 29)

The order continues 32 advisory committees, including the Committee for the Preservation of the White House; the President’s Export Council; the President’s Committee on the International Labor Organization; the San Juan Islands National Monument Advisory Committee; and the Interagency Task Force on Veterans Small Business Development until September 30, 2019.

The President also submitted his “Immigration Principles and Policies” to the House and Senate on October 8. Among those included were a border wall; additional resources and policies for combatting unaccompanied minors; asylum reform; restricting federal funding for sanctuary cities; and transition from a family-based chain migration to a merit-based immigration system.

RULEMAKING PROCESS/AGENCY ACTION

Centers for Medicare & Medicaid Services

CMS is withdrawing a proposed rule published on December 12, 2014 that would have revised certain definitions and patient’s rights provisions that currently defer to state law, in order to ensure that same-sex spouses are recognized and afforded equal rights in certain Medicare and Medicaid-participating facilities.

CMS is withdrawing a proposed rule that was published on January 12, specifying the qualifications needed for qualified practitioners to furnish and fabricate, and qualified suppliers to fabricate prosthetics and custom-fabricated orthotics.

CMS is withdrawing a proposed rule that would implement a new Medicare payment model under section 1115A of the Social Security Act that was published on March 11, 2016.

Coast Guard

The Coast Guard is seeking nominations for those interested in serving on the Area Maritime Security Committee (AMSC) for the Eastern Great lakes and the four regional subcommittees. Interested parties should submit an application to the Federal Maritime Security Coordinator in Buffalo by November 4.

Consumer Financial Protection Bureau

The CFPB issued a final rule and official interpretation that amends Regulation B to permit creditors additional flexibility in complying with the regulation in order to facilitate compliance with Regulation C. The rule is effective January 1, 2018.

Department of Agriculture

USDA’s Office of the Assistant Secretary for Civil Rights issued a final rule updating the requirements for the enforcement of Title IX of the Education Amendments of 1972 for financial assistance from USDA. The rule is effective as of November 5.

Department of Commerce

The Department of Commerce released the Streamlining Permitting and Regulatory Burdens for American Manufacturers report, which identified 20 sets of regulations and permitting issues as being a “top priority” for the domestic manufacturing industry.

The Department issued a final rule updating the Code of Federal regulations legal authority paragraphs in the Export Administration Regulations to cite the most recent Presidential notice continuing a national emergency declared pursuant to the International Emergency Economic Powers Act.

The Department announced that it had made an affirmative preliminary determination in the antidumping duty investigation on silicon metal from Australia, Brazil, and Norway. The investigation found that exporters received subsidies of 20.79, 56.78 to 134.92, and 3.74 percent, respectively.

The Department announced that it had made an affirmative preliminary determination in the antidumping duty investigation into 100- to 150-seat large civil aircraft from Canada. Commerce will apply the sole dumping margin calculated (79.82 percent) to all other producers/exporters.

The Department announced that it will defer issuing a preliminary determination in the antidumping duty investigation on aluminum foil from China. The deferral will allow the Department to “fully analyze” China’s status as a non-market economy (NME). A decision on its NME status will be issued no later than November 30.

Department of Health and Human Services

HHS released an interim final rule on “moral exemptions and accommodations for coverage of certain preventative services” and have requested comments on the decision to expand exemptions. Comments must be submitted by December 5.

HHS announced an interim final rule on “religious exemptions and accommodations for coverage of certain preventive services” under the ACA. They are also calling for comments on the interim rule, which are due by December 5.

HHS is seeking nominations for individuals interested in serving on the Advisory Committee on Minority Health. Nominations must be received by January 3.

HHS announced that it was withdrawing a January 2, 2014 proposed rule that would have required a controlling health plan to submit information and documentation demonstrating that it is compliant with certain standards and operating rules.

Department of the Interior

The Bureau of Land Management issued a proposed rule to temporarily suspend or delay certain requirements contained in the 2016 Waste Prevention, Production Subject to Royalties, and Resource Conservation Rule until January 17, 2019. Comments must be received by November 4.

The Bureau of Ocean Energy Management issued a final rule to establish new regulations to address the use of Outer Continental Shelf sand, gravel, and/or shell resources for shore protection, beach restoration, or coastal wetlands restoration projects. The new rule will be effective as of December 2.

Department of Justice

DOJ announced several actions to “reduce the rising tide of violent crime in America.” Among the actions taken include additional Assistant U.S. Attorney positions focused on violent crime; training and technical assistance to state and local partners; and expanding ATF’s NIBIN Urgent Trace Program.

Department of Transportation

DOT announced that it was withdrawing a proposed rulemaking and related pilot program that proposed to amend its regulations implementing the Government-wide Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards to permit recipients and subrecipients of certain DOT funds to impose geographic-based hiring preferences whenever not otherwise prohibited by federal law. It further rescinded the Innovative Contracting and FHWA HUD Livability Local Hire Initiative pilot programs.

The DOT is reviewing its existing regulations to determine whether they are crafted effectively. As part of this process, DOT invites public comment on existing rules and other agency actions that are good candidates for repeal, replacement, suspension, or modification. Comments are due by November 1.

Department of the Treasury

The Department of the Treasury released its report on Identifying and Reducing Tax Regulatory Burdens. Among its regulations include withdrawing proposed Section 103 regulations on the definition of political subdivision; withdrawing regulations under Section 2704 that limit valuation discounts; and withdrawing Section 385 documentation regulations. The report also identifies a number of regulations for partial revocation including Section 752 on liabilities recognized as recourse partnership liabilities; Section 987 on income and currency gain or loss with respect to a Section 987 qualified business unit; and Section 337(d) on certain transfers of property to regulated investment companies and real estate investment trusts.

The Department released a report detailing how to streamline and reform the U.S. regulatory system for the capital markets.

The Alcohol Tobacco Tax and Trade Bureau released three new proposed regulations. The first reopens the comment period for the Proposed Addition of New Grape Variety Names until December 10. The second reopens the Proposed Revisions to Wine Labeling and Recordkeeping Requirements proposed rulemaking for comments until January 9, 2018. The third reopens the comment period until January 9, 2018 for the Wine Treating Materials and Related Regulations proposed rulemaking.

Department of Veterans Affairs

The VA issued a proposed rule to amend its medical regulations by standardizing the delivery of care by VA health care providers through telehealth. Comments must be received by November 1.

Environmental Protection Agency

The EPA issued additional information and a request for further comment on the data and potential options for reductions in the 2018 biomass-based diesel, advanced biofuel, and total renewable fuel volumes, and/or the 2019 biomass-based diesel volume under the Renewable Fuel Standard program. Comments are due by October 19.

Federal Aviation Administration

The FAA issued a final rule adopting a new noise standard (known as State 5) for certain newly certificated subsonic jet airplanes and subsonic transport category large airplanes. The rule will be effective November 3.

Federal Communications Commission

The FCC issued a final rule that modifies the Table of Frequency Allocations, as well as modifying four rules to conform them to the broadcast television incentive auction. The rule is effective as of November 10.

Federal Energy Regulatory Commission

FERC issued a Notice of Proposed Rulemaking that the Commission exercise its authority under the federal Power Act to “establish just and reasonable rates for wholesale electricity sales.” FERC will either take final action or issue the proposed rule as an interim final rule before December 9. Either way, comments are due November 24.

Federal Highway Administration

The FHWA issued a notice of proposed rulemaking seeks to repeal the Greenhouse Gas measure that was part of a rule issued on January 18 that established a measure on the percent change in CO2 emissions generated by on-road mobile sources on the National Highway System. Comments must be received by November 4

Food and Drug Administration

The FDA issued a proposed rule to extend the compliance dates for the final rules providing updated nutrition information on the label of food; defining a single-serving container; requiring dual-column labeling; updating, modifying and establishing certain reference amounts customarily consumed; and amending the label serving size for breath mints, which were published on May 27, 2016. The compliance date would be extended by approximately 1.5 years. Comments are due by November 1.

The FDA is seeking comment on the design of the REMS Platform Standards Initiative. Comments will be accepted indefinitely.

The FDA is seeking nominations for members to serve on the Tobacco Products Scientific Advisory Committee. Nominations must be received by December 2.

Internal Revenue Service

The IRS issued a Notice of Proposed Rulemaking to streamline the section 754 election. Comments are due by November 11.

National Oceanic and Atmospheric Administration

Nominations are being sought for the Marine Fisheries Advisory Committee that are currently open or will open as of February 2018. The Committee advices the Secretary of Commerce on matters concerning living marine resources. Nominations must be received by November 27.

National Transportation Safety Board

The NTSB has released an interim final rule, which adjusts for inflation the maximum civil penalty that the Board may assess against a person for violating NTSB statutes and regulations. Comments must be received by October 27.

Nuclear Regulatory Commission

The NRC issued a notice that it was discontinuing its rulemaking that would have required licenses to remediate residual radioactivity resulting from licensed activities during facility operations, rather than at license termination.

Small Business Administration

The Small Business Administration is extending the comment period for the August 15 announcement that it was seeking public input on which of the Agency’s regulations should be repealed, replaced of modified because they are ineffective, obsolete, unnecessary or burdensome. Comments will now be accepted through November 15.

Surface Transportation Board

The Board issued a notice of proposed rulemaking to modify its regulations to permit ex parte communications in informal rulemaking proceedings, subject to disclosure requirements. Comments are due by November 1, and replies are due by November 16.


September 28, 2017

It’s Week 36 of the Trump presidency. There are 20 days when both the House and Senate are in session before the Thanksgiving recess, and 28 legislative days before the CR expires on December 8.

The second special session of the Joint Committee under the U.S.-Korea (KORUS) Free Trade Agreement will take place October 4 in Washington, D.C.

Congressional Leaders, joined by the Director of the National Economic Council and the Secretary of the Treasury, dubbed the “Big Six,” released their tax framework yesterday. Our Tax Tuesday team has more coverage here.

The fourth round of NAFTA renegotiations will take place in Washington, D.C. October 11-15.

PRESIDENTIAL ACTION

President Trump did not issue any Executive Orders this week.

As the second version of the “travel ban” expired on Sunday, President Trump issued a Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats. The proclamation identifies eight countries (Syria, Venezuela, North Korea, Yemen, Iran, Somalia, Chad, and Libya) that are effected by the proclamation, though each country is effected differently with restrictions tailored by the “unique conditions and deficiencies” in each country.” Unlike the original versions of the travel ban, this proclamation does not apply to lawful permanent residents; foreign nationals with travel documents other than visa that were valid on the day that the proclamation was issued; any dual national traveling on a passport issued by a non-designated country; a person traveling on a diplomatic visa; or any person granted asylum or refugee who has already been admitted to the U.S.

President Trump also signed a memorandum to the Secretary of Education “increasing access to High-Quality Science, Technology, Engineering, and Mathematics (STEM) Education.” Among other things, the memorandum states that the Secretary should “establish a goal of devoting at least $200 million in grant funds per years to the promotion of high-quality STEM education.” Additionally the Secretary is required to submit a report within 90 days of the end of the fiscal year to the OMB Director on activities described in the memorandum.

RULEMAKING PROCESS/AGENCY ACTION

Centers for Medicare & Medicaid Services

CMS is seeking nominations for the Medicare Advisory Panel on Clinical Diagnostic Laboratory Tests, which advises the Secretary of HHS and the CMS Administrator on issues related to clinical diagnostic laboratory tests. Nominations will be considered on a continuous basis.

Chemical Safety and Hazard Investigation Board

The Chemical Safety and Hazard Investigation Board issued an interim final rule revising its Freedom of Information Act rule to ensure consistency with the FOIA Improvement Act of 2016 and to update other provisions. Comments must be received by October 29.  

Coast Guard

The Coast Guard is seeking nominations for those interested in serving on the Boston Area Maritime Security Committee (AMSC). Interested parties should submit an application to the Captain of the Port, Boston, MA by October 26.

Department of Agriculture

USDA’s National Institute of Food and Agriculture announced $21 million to help Supplemental Nutrition Assistance Program (SNAP) beneficiaries increase their purchases of fruits and vegetables by providing incentives at the point of purchase. Government agencies and nonprofit organizations are eligible to apply for funding, and applications are due by December 13.

The Agricultural Marketing Service issued a proposed rule and invited comments on “realigning the production districts under the Watermelon Research and Promotion Plan for producer and handler membership on the National Watermelon Promotion Board, and adding four importer seats to the Board.” Comments are due by October 27.

Department of Commerce

The Department announced that it had made an affirmative preliminary determination in the countervailing duty investigation 100- to 150-seat large civil aircraft from Canada. The investigation found that exporters received subsidies of 219.63 percent.

Department of Defense

The DoD issued an interim final rule that implements the primary features of section 701 and partially implements several other sections of the National Defense Authorization Act for FY17. Among other things, the law makes a number of significant changes and improvements to TRICARE. Comments will be accepted through November 28.

Department of Education

After announcing earlier in the month that she would withdraw the Obama-era campus sexual assault guidelines, Secretary of Education Betsy DeVos released the new interim guidance.

The Department of Education released non-regulatory guidance to “help Department grantees and program participants remove barriers to restoring teaching and learning environments and to expediting the recovery process for all those impacted by the recent hurricanes.”

The Department released its updated waivers and modifications of statutory and regulatory requirements for federal student aid programs. The waivers and modifications referenced in the release will expire on September 30, 2022.

The Department released the FY2014 three-year federal student loan cohort default rate, which increased from 11.3 percent to 11.5 percent for students who entered repayment between FY13 and FY14.

Department of Energy

The Department announced $36 million in federally-funded financial assistance “to advance carbon capture technologies” through the Office of Fossil Energy. The Design and Testing of Advanced Carbon Capture Technologies opportunity will “support cost-shared research and development projects that will continue the development of carbon capture technologies either the engineering scale or to a commercial design.

Department of Health and Human Services

HHS released a final rule and a further delay of the effective date for section 340B of the Public Health Service Act, known as the “240B Drug Pricing Program.” The final rule for this program was released on January 5, 2017, and HHS solicited comments on delaying the effective date in August. After consideration of the comments received, HHS will delay the effective date until July 1, 2018.

The Office of Head Start announced that it would delay the compliance sate for background check procedures and the date from programs to participate in their state or local Quality Rating and Improvement Systems, which were described in the Head Start Program Performance Standards final rule. Compliance will be delayed until September 30, 2018.

HHS is seeking comment on its draft Strategic Plan for Fiscal Years 2018-2022. Comments are due by October 26.

Department of Homeland Security

DHS, due to the severe destruction across Puerto Rico, waived the Jones Act requirements for the transportation of cargo onto the island on September 28. The waiver will last for ten days, though that may be extended.

DHS, in conjunction with the Department of the Treasury issued a final rule regarding the U.S. Customs and Border Protection regulations regarding changes to the in-bond process, which was originally published on February 22, 2012. The in-bond process “allows imported merchandise to be entered at one U.S. port of entry without appraisement or payment of duties and transported by a bonded carrier to another U.S. port of entry.” The rule will be effective on November 27.

Department of Justice

The Federal Bureau of Investigation released its 2016 Crime in the United States (CIUS) report, which covers the entirety of 2016.

Department of Labor

The Office of Workers’ Compensation Programs is seeking nominations for its Advisory Board on Toxic Substances and Worker Health for Part E of the Energy Employees Occupational Illness Compensation Program Act. Nominations are due October 25.

Department of Transportation

DOT announced the availability of $40 million in “quick release” Emergency Relief funds to restore essential service on roads and bridges in Puerto Rico that were damaged by Hurricane Maria.

The Federal Highway Administration, in conjunction with the Federal Railroad Administration and the Federal Transit Administration, released a Supplemental Notice of Proposed Rulemaking on the implementation of the National Environmental Policy Act and Section 4(f) requirements. Comments on this rulemaking are due by November 28.

The Federal Highway Administration announced the effective date for parts of the National Performance Management measures; Assessing Performance of the National Highway System, Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality Improvement Program Final Rule. The rule will be effective September 28.

The Federal Transit Administration, Federal Highway Administration, and the Federal Railroad Administration released a notice of proposed rulemaking and a request for comment on DOT’s Program for Eliminating Duplication of Environmental Reviews, which was established by Section 1309 of the FAST Act. Comments are due by November 27.

Department of the Treasury

The Department, in conjunction with the Office of the U.S. Trade Representative, signed a covered agreement on prudential insurance and reinsurance measures with the European Union.

The Department of the Treasury raised eyebrows on Thursday when the Wall Street Journal noted it removed a 2012 report from the Office of Tax Analysis entitled “Distributing the Corporate Income Tax: Revised U.S. Treasury Methodology” from its website. The removal is notable because the analysis found that workers pay 18% of the corporate tax, while current Treasury Secretary Mnuchin, in his argument on the need and benefits of tax reform, has said that 70% of the corporate tax burden falls to workers.

Department of Veterans Affairs

The VA announced that it would award up to $8 million in grants for adaptive sports programs that would benefit disabled veterans, as well as disabled members of the armed forces.

Drug Enforcement Agency

The DEA released a final rule removing the substance naldemedine (including its salts) from the schedules of the Controlled Substances Act. It was previously classified as a schedule II controlled substance. The rule is effective September 29.

Food and Drug Administration

The FDA is seeking nominations from industry organizations that are interested in participating in the selection of nonvoting industry representatives to serve on certain panels of the Medical Devices Advisory Committee (MDAC) in the Center for Devices and Radiological Health. Any organization interested in participating must submit a letter to the FDA stating their interest by October 28.

Internal Revenue Service

The IRS issued final regulations regarding “the withholding from, and the information reporting on, certain payments of gambling winnings from horse races, dog races, and jai alai and on certain other payments of gambling winnings.”

The IRS issued a withdrawal of notice of proposed rulemaking and notice of proposed rulemaking to streamline the public approval requirement provided in section 147(f) of the IRS Code applicable to tax-exempt private activity bonds issued by State and local governments. Comments must be received by December 27.

National Capital Planning Commission

The NCPC announced it was rescinding its current Environmental and Historic Preservation Policies and Procedures and adopting new rules governing the implementation of the National Environmental Policy Act. The rule will be effective as of October 29.

National Highway Traffic Safety Administration

NHTSA is issuing a final rule to amend the Federal Motor Vehicle Safety Standard No. 305 to “adopt various electrical safety requirements found in Global Technical Regulation 13. It emphasizes that the final rule is a “deregulatory action” and imposes no costs.

Small Business Administration

The Small Business Administration has issued a proposed rule to implement procedures to protest eligibility for inclusion in the Department of Veterans Affairs Center for Verification and Evaluation database. Comments should be submitted by October 28.

SBA is adopting (without change) its revisions to small business size standards. It will incorporate OMB’s North American Industry Classification System. The rule is effective October 1.

Securities and Exchange Commission

The SEC released an Interim Final Temporary Rule for “issuers subject to reporting obligations pursuant to Regulation Crowdfunding and Regulation A in order to address the needs of companies directly or indirectly affected by Hurricane Harvey, Hurricane Irma, or Hurricane Maria. These rules will be effective from September 28 through November 22.

United States Trade Representative

The third round of NAFTA renegotiations concluded in Ottawa on September 27. USTR said that “discussions were substantively completed in the area of small and medium-sized enterprises (SMEs), effectively concluding negotiations on that chapter pending specific outcomes in related discussions.”

LEGISLATION

Senate Commerce and Transportation Committee

Next Wednesday, the Committee will mark up legislation reauthorizing the Transportation Security Administration (S. 1872) and The American Vision for Safer Transportation Through Advancement of Revolutionary Technologies Act (S. 1885), which addresses autonomous vehicles. The AV START Act expands the Secretary of Transportation’s discretionary authority to implement an enhanced review and approval process for federal motor vehicle safety standards; requires manufacturers to submit safety evaluation reports to DOT; clarifies that the authorities in the act apply to vehicles weighing more than 10,000 pounds; and utilizes many of the provisions of the House-passed SELF-DRIVE Act.

Senate Homeland Security and Government Affairs Committee

On October 4, the Committee will mark up sixteen pieces of legislation, including S. 146, the Border Technology Accountability Act, and S. 1305, U.S. Customs and Border Protection Hiring and Retention Act.

House Committee on Homeland Security

Next Tuesday, the Committee will mark up H.R. 3548, the Border Security for America Act, which includes provisions for the full deployment of the Biometric Entry-Exit System; increases the Stonegarden grant program; modernizes the port security system; and allows CBP access unfettered access to federal lands.

House Committee on Natural Resources

Next Tuesday, the Committee will mark up H.R. 3400, the Recreation Not Red-Tape Act, which addresses issues such as the availability of federal and state recreation passes; the online purchase of National parks and Federal Recreational Lands passes; private-sector volunteer enhancement programs; and recreational opportunities on federal lands.


September 21, 2017

It’s Week 35 of the Trump presidency. There are 24 days when both the House and Senate are in session before the Thanksgiving recess, and 32 legislative days before the CR expires on December 8.

The South Korean Trade Minister has formally requested a second “special session” of the Korea-U.S. Free Trade Agreement’s joint committee to be held in Washington. The request coincided with a bilateral meeting between the U.S. and South Korea at the UN General Assembly.

The fourth round of NAFTA renegotiations will take place in Washington, D.C. October 11-15. The third round is scheduled for Ottawa, Canada from September 23-27.

PRESIDENTIAL ACTION

President Trump issued one Executive Order this week.

Imposing Additional Sanctions with Respect to North Korea (September 21)

The order, which builds upon Executive Order 13466 (signed by President George W. Bush), expands the U.S. sanctions on North Korea. Finding North Korea’s actions “provocative, destabilizing, and repressive,” the order allows the Secretary or the Treasury to target individuals and companies that do business with that country, including “any foreign financial institution.”

President Trump also signed a memorandum continuing the National Emergency with Respect to Persons Who Commit, Threaten to Commit, or Support Terrorism, which was signed on September 23, 2001.

RULEMAKING PROCESS/AGENCY ACTION

Centers for Disease Control and Prevention

The CDC is seeking nominations for membership to the Healthcare Infection Control Practices Advisory Committee (HICPAC). HICPAC has 14 members with expertise in a variety of fields. Nominations must be received by November 30.

Coast Guard

The Coast Guard is seeking nominations for membership to the Commercial Fishing Safety Advisory Committee, which makes recommendations on various matters relating to the safe operation of commercial fishing industry vessels. Nominations are due by November 18.

Consumer Product Safety Commission

The CPSC released a final rule for safety standards for durable infant or toddler products, specifically a safety standard for infant bouncer seats. The rule will be effective as of March 19, 2018.

Department of Agriculture

USDA will conduct a trade mission to São Paulo and Recife, Brazil, September 25-29. Twenty-four agribusiness and trade organizations will take part. The mission to Brazil will be followed by a trade mission to India October 30-November 2017.

The National Institute of Food and Agriculture is soliciting stakeholder input through its “NIFA Listens: investing in Science to Transform Lives.” Four regional listening sessions will be held (Oct. 19 in Kansas City, MO; Oct. 26 in Atlanta; Nov. 2 in Sacramento; and Nov. 8 in Hyattsville, MD), and attendees must register by October 12.

Department of Commerce

The Department of Commerce has initiated an antidumping and countervailing duty investigation into the import of titanium sponge from Kazakhstan and Japan.

The Department announced that it had made an affirmative preliminary determination in the countervailing duty investigation of cold-drawn mechanical tubing from India and China. The investigation found that exporters received subsidies of between 3.04 and 8.09 and 33.31 and 35.69 percent, respectively.

Department of Health and Human Services

HHS, in response to Hurricane Irma, activated the National Disaster Medical System Definitive Care Reimbursement Program, which reimburses medical facilities for the medical care costs of medically evacuated patients.

Department of Homeland Security

Due to the recent natural disasters, DHS has released a guide for those trying to recover. Additionally, the Federal Emergency Management Agency’s National Flood Insurance Program is extending the grace period for paying policy renewal premiums.

Department of the Interior

The memorandum from to the White House containing the Department’s recommendations on how to modify 10 national monuments was leaked after the White House refused to release it. The memo recommends reducing four land-based monuments: the Bear Ears National Monument in Utah; the Cascade-Siskiyou National Monument in Oregon; the Gold Butte national Monument in Nevada; and the Grand Staircase-Escalante National Monument in Utah. It also recommends shrinking two marine monuments: the Pacific Remote Islands and the Rose Atoll. Additionally, the Secretary recommended that the management of these monuments, as well as the Katahdin National Monument in Maine; the Northeast Canyons and Seamounts; the Organ Mountains-Desert Peaks National Monument in New Mexico; and Rio Grande Del Norte in New Mexico change.

The Department announced that the Bureau of Land Management will acquire the ET Ranch in Arizona to “increase access for hunter, hikers, and backpackers to the Santa Teresa Wilderness Area.”

Interior Secretary Ryan Zinke signed Secretarial Order 3356, which “will support and expand hunting and fishing, enhance conservation stewardship, improve wildlife management, and increase outdoor recreation opportunities for all Americans.

Department of Transportation

The Federal Highway Administration announced $1 million in “quick release” Emergency Relief funds to begin repairs on roads and bridges in Oregon, which were damaged in July.  

Department of the Treasury

The Department, in conjunction with the Federal Reserve System and the FDIC,  released a joint notice of proposed rulemaking “implementing the Community Reinvestment Act (CRA) to update the existing definitions of ‘home mortgage loan’ and ‘consumer loan.’” Comments must be received by October 20.

Environmental Protection Agency

The EPA is postponing the earliest compliance dates for the new best available technology economically achievable (BAT) effluent limitations and pretreatment standards for existing sources (PSES) for the steam electric power generating point source category, which was published November 3, 2015.  In particular, the postponement effects BAT effluent limitations and PSES for flue gas desulfurization wastewater and bottom ash transport water.

Federal Motor Carrier Safety Administration

The FMCSA issued a notice of proposed rulemaking to establish reductions in the annual registration fees collected from motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. Comments must be received by October 1.

Federal Trade Commission

The FTC released a final rule and adopted revised guides relating to the Guide Concerning Fuel Economy Advertising for New Automobiles to “address advertising claims prevalent in the market and harmonize” with EPA and NHTSA fuel economy labeling rules. These will be effective as of October 19.

International Revenue Service

The IRS issued a notice of proposed rulemaking on sections 6051 and 6052 of the Internal Revenue Code in order to help employers’’ “efforts to protect employees from identity theft” to allow them to “voluntarily truncate employees’ social security numbers” on certain forms. Comments and requests for public hearings must be received by December 18.

National Highway Traffic Safety Administration

NHTSA, in conjunction with the National telecommunications and Information Administration, released a notice of proposed rulemaking for the 911 Grant Program. Comments must be received by November 5. 

United States Trade Representative

USTR announced an Out-of-Cycle review on Thailand’s Special 301 status because of “positive steps the country has taken regarding intellectual property.”


September 14, 2017

It’s Week 34 of the Trump presidency. Congress has returned to kick off legislative work in what promises to be a busy Fall.
The fourth round of NAFTA renegotiations will take place in Washington, D.C. October 11-15. The third round is scheduled for Ottawa, Canada from September 23-27.
Director of National Intelligence and Attorney General Jeff Sessions sent a letter to Congress urging the body to “promptly reauthorize, in clean and permanent form, Title VII of the Foreign Intelligence Surveillance Act, which is set to sunset at the end of this year.”
 

PRESIDENTIAL ACTION

Though President Trump issued one Executive Order this week.
The order prevents Canyon Bridge, a private equity firm of which China Venture Capital Fund Corporation Limited was a part, from acquiring Lattice Semiconductor, which manufacturers chips because the action “threatens to impair the national security of the United States.”
Yesterday, the president signed a memorandum to the Secretary of State on the Determination on Major Drug Transit or Major Illicit Drug Producing Countries for FY18. The memo designated 22 countries thusly. Most notably, however, was the notation that the U.S. “seriously considered designating Colombia as a country that has failed demonstrably to adhere to its obligations under international counternarcotics agreements due to the extraordinary growth of coca cultivation and cocaine production over the past 3 years, including record cultivation during the last 12 months.”
President Trump also signed a memorandum continuing the National Emergency with Respect to Certain Terrorist Attacks, which was signed on September 14, 2001, as well as a memorandum continuing the exercise of certain authorities under the Trading with the Enemy Act in regards to Cuba.

RULEMAKING PROCESS/AGENCY ACTION

Army Corps of Engineers
The Corps is extending its comment period on existing regulations that may be appropriate for repeal, replacement, or modification. Comments are now due by October 15.
 
Consumer Financial Protection Bureau
The CFPB issued a final rule amending Regulation C to “clarify certain requirements adopted by the Bureau’s Home Mortgage Disclosure (Regulation C) final rule (2015 HMDA Final Rule),” which was published in October 2015, in addition to increasing the threshold for collecting and reporting data about open-end lines of credit for a period of two years. The rule is effective on January 1, 2018, with certain exceptions that are effective on January 1 of 2019 and 2020.
Consumer Product Safety Commission
The CPSC announced a proposed rulemaking to amend the standard for all-terrain vehicles. Comments must be received by November 27.
 
Department of Agriculture
The Department of Agriculture is seeking nominations for its Secure Rural School Resource Advisory Committees (SRS RACs). The SRS RACs are comprised of 15 members who each serve 4-year terms. Nominations must be received by October 26.
Department of Commerce
Several reports indicate that Secretary Ross and the Department of Commerce will not issue its expected report on the national security impacts of steel imports until tax reform is completed.
The Department announced that it had made an affirmative preliminary determination in the countervailing duty investigation of tool chests and cabinets from China. The investigation found that exporters received subsidies of between 17.32 and 32.07 percent.
Department of Homeland Security
DHS issued a Binding Operational Directive, which instructed Executive Branch departments and agencies to take action against products, solutions, or services supplied directly or indirectly by AO Kaspersky Lab. The Directive further says that agencies and departments have 30 days to identify use and develop detailed plans to remove and discontinue use of the products with 60 to 90 days.
Customs and Border Protection issued a request for comment on “existing regulations, paperwork requirements, and other regulatory obligations that can be modified or repealed” to save time or money. Comments should be received by December 11.
DHS announced visa sanctions on Cambodia, Eritrea, Guinea, and Sierra Leone for “lack of cooperation in accepting their nationals ordered removed from the United States.”
 
Department of the Interior
The Bureau of Indian Affairs announced its intent to establish the Bureau of Indian Education Standards, Assessments, and Accountability System Negotiated Rulemaking Committee to “advise the Secretary of the Interior through the BIE on a proposed rule to revise the Adequate Yearly Progress regulation and invite Tribes whose students attend BIE-funded schools operated by either the BIE or by the Tribe through a contract or grant who would be affected by the final rule to nominate a representative for membership on the Committee.” The BIE is also asking for nominations to sit on the committee. Comments and nominations must be submitted by October 14.
 
Department of Justice
The Department, in conjunction with the Federal Trade Commission, announced the release of antitrust guidance for businesses involved in relief efforts or those that may become involved in rebuilding communities after Hurricanes Harvey and Irma.
DOJ announced that they police departments would receive additional points in the application scoring process for COPS grants “if their agencies cooperate with federal law enforcement to address illegal immigration, ensuring that federal immigration authorities have the full ability to enforce immigration laws and keep our communities safe.”
Department of Labor
The Mine Safety and Health Administration announced that it was proposing to delay the effective date for the Agency’s standards for the examination of working places in metal and nonmetal mines, which was announced January 23. The new effective date would be March 2, 2018. Comments on that decision be received by September 26. Additionally, MSHA announced that it was seeking to amend the final rule to “provide mine operators additional flexibility.” Comments on these changes must be received by November 11.
 
Department of State
The Department is seeking nominations for U.S. scientists to serve as the Coordinating Lead Authors, Lead Authors, or Review Editors on the Working Group I, II, and III contributions to the Intergovernmental Panel on Climate Change Sixth Assessment Report. Nominations must be received by October 17.
 
Environmental Protection Agency
The EPA is seeking nominations with bioethics and statistics expertise to serve on its Human Studies Review Board. Nominations must be submitted by October 15.
 
Food and Drug Administration
The FDA announced a proposed rule to extend the compliance dates for agricultural water provisions in the Standards for the Growing, Harvesting, packing, and Holding of Produce for Human Consumption rule. Comments must be received by November 12.
 
National Highway Traffic Safety Administration
NHTSA released its Automated Driving Systems: A Vision for Safety, voluntary guidance on automated driving systems that is based on public comments received by the Federal Automated Vehicles Policy in September 2016. NHTSA is also requesting comment on that guidance, which should be received by November 14.  
 
United States Trade Representative
USTR announced that it is seeking nominations for its Trade and environment Policy Advisory Committee (TEPAC), which advises the Trade Representative on issues that have a “significant impact on the environment.” Nominations will be accepted on a rolling basis for the term that begins on September 30.

September 7, 2017

It’s Week 33 of the Trump presidency. Congress has returned to kick off legislative work in what promises to be a busy Fall.

The third round of NAFTA renegotiations will take place in Ottawa, Canada from September 23-27. The second round, which occurred in Mexico City concluded on Tuesday.

PRESIDENTIAL ACTION

Though President Trump issued no Executive Orders this week, he did make news by ending the Deferred Action for Childhood Arrivals (DACA) program. The program will be phased out as of March 5, 2018 unless Congress creates a legislative solution.

President Trump also made his first significant push for tax reform. More information, including his remarks, can be found in Prime’s Tax Tuesday.

RULEMAKING PROCESS/AGENCY ACTION

Department of Agriculture

USDA announced a number of moves continuing the reorganization that began in May. These moves include moving the Codex Alimentarius program into the Trade and Foreign Agricultural Affairs mission; creating a Rural Development Innovation Center; and merging the Center for Nutrition Policy and Promotion into the Food and Nutrition Service.

The Department of Agriculture’s National Institute of Food and Agriculture is seeking nominations of veterinary service shortage situations for the Veterinary Medicine Loan Repayment Program for FY18. Nominations must be submitted by October 20.

USDA’s National Institute of Food and Agriculture announced $3.1 million in funding available to train policymakers, researchers, and educators in the food and agricultural sciences. Applications are due October 31.

Department of Commerce

The Department announced that it had made an affirmative preliminary determination in the antidumping duty investigation of alloy and carbon steel wire rod from the United Arab Emirates, Belarus, and Russia. The investigation found that exporters received subsidies of 84.10, 280.02, and 436.8 to 756.93 percent, respectively.

The Department of Commerce announced that it had initiated a new antidumping and countervailing duty investigation into stainless steel flanges from China and India/

Department of Education

During her speech today, Secretary of Education Betsy DeVos indicated that the Department of Education will rollback Obama Administration guidance governing campus sexual assault and enforcement of Title IX. No further details were available on what exactly that means, though she did say that public input would be sought in developing a new policy.

Department of Energy

The Department issued a proposed rule to allow DOE to provide faster approval of “small-scale” exports of natural gas, including LNG, from U.S. export facilities to “countries with which the United States has not entered into a free trade agreement requiring national treatment for trade in natural gas.” Comments are due by October 16.

Department of Homeland Security

The Department announced $288 million for six FY17 DHS competitive preparedness grants

DHS issued a final rule describing the procedures for issuance of a discretionary waiver for people seeking admission to the U.S. as a nonimmigrant. The rule is effective October 5. 

Department of Transportation

Secretary of Transportation Elaine Chao instructed FMCSA to issue a Regional Emergency Declaration in advance of Hurricane Irma. That declaration comes on the heels of the Regional Declaration of Emergency for Oil and Gas Supplies that was issued last week due to Hurricane Harvey.

DOT announced that the Transportation Investment Generating Economic Recovery (TIGER) program was open for applications. $500 million in funding is available through September 30, 2020, and grants range between $5 million and $25 million. Applications are due by October 16.

Environmental Protection Agency

The EPA issued a proposed rule to make changes to Method 202- Dry Impinger Method for Determining Condensable Particulate Emissions. Comments are due by November 7. 

Food and Drug Administration

As part of its implementation of Executive Orders 13771 and 13777, the FDA is seeking comments and information on the following products and programs: Center for Biologics Evaluation and Research; Center for Devices and Radiological Health; Center for Drug Evaluation and Research; Center for Food Safety and Applied Nutrition; Center for Tobacco Products; Center for Veterinary Medicine; and multiple FDA Centers and/or Offices. All comments are due by December 7.

National Aeronautics and Space Administration

NASA has issued a call for nominations to serve on its Federal advisory committees. The deadline for receiving nominations is September 30.

United States Trade Representative

USTR and the Department of Agriculture announced that Vietnam would resume imports of American distillers dried grains (DDGS).

The WTO issued an Appellate Body report rejecting a case brought by the European Union, which alleged that the U.S. Provided “prohibited subsidies,” including a Washington state tax provision, to Boeing.

LEGISLATION

On Wednesday, the House passed the SELF Drive Act (H.R. 3388), “regarding the authority of the National Highway Traffic Safety Administration over highly automated vehicles” by voice vote. The Act sets out a basic framework for regulations on autonomous vehicles, including that a vehicle may not be sold in the U.S. without the manufacturer having both cybersecurity and privacy plans. It gives NHTSA the power to control the design, construction, and performance of autonomous vehicles, as it does with traditional cars. This allows the federal government to preempt state laws. Further, the Act requires the Secretary of Transportation to provide Congress a rulemaking and safety priority plan within one year. The plan must include 5-year NHTSA priorities and the identification of elements that require standards. Rulemaking must be initiated within 18 months of the bills adoption into law. Additionally, the bill increases the number of Federal Motor Vehicle Safety Standards exemptions that NHTSA is allowed to grant, and mandates the creation of a NHTSA-administered Highly Automated Vehicle Advisory Council.


August 31, 2017

Due to August Recess, the following covers the period from August 18 through August 31.

It’s Week 32 of the Trump presidency. Both the House and Senate are gone for August recess. When they return on September 5, the Chambers will have only 12 working days that they are both in session before government funding expires.

USTR and the Department of Commerce are soliciting comments on the impacts of “all United States free trade agreements and the World Trade Organization Agreement on Government Procurement on the operation of Buy American Laws, including their impacts on the implementation of domestic procurement preferences.” Written comments must be submitted by September 18 in order to be included in the final report, which will be submitted t the President by November 24.

PRESIDENTIAL ACTION

President Trump signed two Executive Orders during this period.

Imposing Sanctions with Respect to the Situation in Venezuela (August 25)

The order implements new sanctions on the government of Venezuela. Additionally, the Order prohibits Petroleos de Venezuela S.A., a state-owned oil company, from engaging in dealings with U.S. citizens. Additionally, it allows for the Treasury Department’s Office of Foreign Assets to make exceptions to the sanctions.

Restoring State, Tribal, and Local Law Enforcement’s Access to Life-Saving Equipment and Resources (August 28)

The order revokes Executive Order 13688 issued by President Obama, which ended the practice of the federal government, particularly the Department of Defense, from providing military surplus equipment to police departments.

After announcing on Twitter at the end of July that transgender individuals would not be allowed to serve in the U.S. military, President Trump sent a Memorandum to the Secretaries of Defense and Homeland Security formalizing that directive, effecting not only prospective transgender service members but also troops currently serving. However, on August 30, Secretary of Defense Jim Mattis put a hold on the Administrative Directive, allowing policy from the Obama Administration that allowed transgender members to remain, saying that “current policy with respect to currently serving members will remain in place.” Additionally, there are pending lawsuits challenging the new ban.

The President also signed a Memorandum to the Secretary of Defense, which elevated U.S. Cyber Command to a Unified Combatant Command.

Finally, the President pardoned Arizona Sheriff Joe Arpaio, who was convicted of criminal contempt of court.

RULEMAKING PROCESS/AGENCY ACTION

Army Corps of Engineers

The Corps, along with the EPA and the Defense Department, has extended the comment period for the proposed rule “Definition of ‘Waters of the United States’ – Recodification of Pre-existing Rules.” Comments will now be accepted through September 27. Ten teleconferences will be held with the public throughout the fall. The dates and the specific topics covered for each can be found here.

The Army Corps of Engineers is reopening the comment period for the notice of proposed rulemaking on Army Corps of Engineers Reservoir Projects for Domestic, Municipal, & Industrial Water Supply that was originally proposed on December 16, 2016. Comments will now be accepted through November 16.

Coast Guard

The U.S. Coast Guard is seeking nominations for the Navigation Safety Advisory Council, which provides advice and recommendations on a host of issues including maritime collisions; Inland Rules of the Road; and navigation regulations. Completed applications are due October 21.

Comptroller of the Currency

The Office of the Comptroller of the Currency (OCC) released a notice of proposed rulemaking that would extend the “current treatment under the regulatory capital rules for certain regulatory capital deductions and risk weights and certain minority interest requirements.”  Comments are due September 24.

Department of Agriculture

USDA released an advance notice of proposed rulemaking and request for comment on potential revisions to the licensing requirements under the Animal Welfare Act. Comments are due by October 23.

The Department of Agriculture is seeking nominations for the National Agricultural Research, Extension, and Economics (NAREEE) Advisory Board, as well as its subcommittees. NAREE has ten vacancies, and the Specialty Crop Committee and the National Genetics Advisory Council both have three openings.

USDA has reopened the nomination process for the National Advisory Committee on Microbiological Criteria for Foods, which originally closed on January 6. New nominations must be received by September 27.

The Department of Agriculture is seeking nominations for the Forestry Research Advisory Council of the Agriculture and Food Act of 1981 and the Federal Advisory Committee Act. Nominations must be received by October 15.

Department of Commerce

The Department announced that it had made an affirmative preliminary determination in the countervailing duty investigation on biodiesel from Indonesia and Argentina. The investigation found that exporters received subsidies of 42.06 to 68.28 percent and 50.29 to 64.17 percent, respectively.

The Department of Commerce announced that it had initiated a new antidumping and countervailing duty investigation into uncoated groundwood paper from Canada.

The Department announced that it was postponing the final determination in the countervailing duty and antidumping duty investigation of softwood lumber from Canada. A determination will now be issued no later than November 14.

Department of Education

The Department of Education announced its intention to establish two negotiated rulemaking committees to prepare proposed regulations for the Federal Student Aid programs authorized under title IV of the Higher Education Act of 1965. Nominations to serve of the committees must be submitted by September 29.

The Department announced that it would hold two public hearings on its regulations for postsecondary education that may be appropriate for repeal, replacement, or modification. The first hearing will take place on September 26 in Sandy, Utah and the second will occur on October 4 in Washington, DC.

Department of Energy

The Department announced it was “adopting an interpretive rule to clarify its interpretation of Section 136 of the Energy Independence and Security Act of 2007,” which governs the Advanced Technology Vehicle Manufacturing Loan Program.

The Department of Energy announced an extension of the comment period for its Request for Information pertaining to the test procedures for small electric motors and electric motors. The comment period will now expire on September 13.

The Department of Energy announced that it was making $50 million in funding available to design, construct, and operate two large-scale pilots for “transformational coal technologies.” Applications will be judged on three phases: feasibility, design and construction/operation.

The Department released its long-awaited report on electricity markets and reliability.

Department of Health and Human Services

HHS announced that it was soliciting comments on delaying the effective date of its “340B Drug Pricing Program” until July 1, 2018. Comments must be received by September 20.

HHS gave notice of its intent to establish the Pain Management Best Practices Inter-Agency Task Force, per section 101 of the Comprehensive Addiction and Recovery Act of 2016. Therefore, they are also soliciting nominations for individuals who are interested in serving on the Task Force. Nominations must be submitted by September 27.

Department of the Interior

Interior Secretary Ryan Zinke sent his draft monument report to the White House. While the report contained findings and recommendations on national monuments, it did not recommend rescinding any designation. The report summary can be found here.

Department of Labor

The Department announced a proposed extension of the special transition period for the Fiduciary Rule’s Best Interest Contract (BIC) Exemption and the Principal Transactions Exemption until July 1, 2019. Comments must be submitted by September 15.

Department of Veterans Affairs

The VA issued a final rule amending its regulations for the Supportive Services for Veteran Families Program. The rule is effective October 1.

The Department of Veterans Affairs is withdrawing a proposed rule governing the VA’s Veteran-Owned Small Business Verification Program. The proposed rule was originally published on November 6, 2015.

Federal Communications Commission

The FCC adopted a final rule updating the rules governing Personal Radio Services, which are used by the public for things like walkie-talkies, Personal Locator Beacons, radio controlled model toys, and medical implant devices, among others. The new rule will go into effect September 28.

The FCC is seeking comment on how to revise FCC Form 477 collection of voice and broadband subscription and deployment data to increase its usefulness. Comments are due by September 23.

Federal Energy Regulatory Commission

FERC is seeking additional comments on its Notice of Proposed Rulemaking, released November 17, 2016, governing Essential Reliability Services and the Evolving Bilk-Power System. The proposed rulemaking would “revise the Commission’s regulations to require all newly interconnecting large and small generating facilities… to install and enable primary frequency response capability as a condition of interconnection.” Comments are due September 14.

National Credit Union Administration

NCUA, in accordance with Executive Order 13777, has established a Regulatory Reform Task Force and is seeking comment on the Task Force’s initial report and if any additional regulatory changes are in order. Comments are due November 20.

National Highway Traffic Safety Administration

NHTSA, in conjunction with the EPA, is seeking comment on whether the light-duty vehicle greenhouse gas standards previously established for model years 2022-2025 are appropriate under section 202(a) of the Clean Air Act. Comments are due October 5. The EPA will also hold a public hearing on its Request for Comment, to take place September 6.

Nuclear Regulatory Commission

The NRC is seeking nominations for the position of Health Care Administrator. Nominations must be submitted by October 5.

United States Trade Representative

USTR announced that it had formally initiated an investigation of China under Section 301 of the Trade Act of 1974 related to “technology transfer, intellectual property, and innovation.”


August 17, 2017

Due to August Recess, this Report will be publishing every other week. The next edition will be on August 31. The following covers the period from August 4 through August 17.

It’s Week 30 of the Trump presidency. Both the House and Senate are gone for August recess. When they return on September 5, the Chambers will have only 12 working days that they are both in session before government funding expires.

NAFTA renegotiations kicked off this week!

PRESIDENTIAL ACTION

President Trump signed one Executive Order during this period.

Allowing Additional Time for Recognizing Positive Actions by the Government of Sudan and Amending Executive Order 13761 (August 15)

The order details several steps to streamline the permitting process for infrastructure projects. It mandates that the Council on Environmental Quality will develop a list of initial actions to “enhance and modernize the Federal environmental review and authorization process” within 30 days. The order establishes Agency Performance goals and standards and established tracking and scoring systems. Additionally, the order eliminates standards established by President Obama that required the government to take climate change and sea-level rise into account when building infrastructure.

President Trump also issued a memorandum to the United States Trade Representative on August 14. The memorandum states that it “[v]iolations of intellectual property rights and other unfair technology transfers potentially threaten United States firms by undermining their ability to compete fairly in the global market” and states that China has taken actions that may “negatively affect American economic interests.” The memorandum instructs USTR to investigate Chinese actions “that may be harming American intellectual property rights, innovation, or technology development.”

Following up on the interim report of his Commission on Combating Drug Addiction and the Opioid Crisis, President Trump instructed his Administration “to use all appropriate emergency and other authorities to respond to the crisis caused by the opioid epidemic.”

RULEMAKING PROCESS/AGENCY ACTION

Centers for Medicare and Medicaid Services

CMS released a proposed rule to “cancel the Episode Payment Models and Cardiac Rehabilitation incentive payment model and to rescind the regulations governing these models. Comments are due by September 16.

Comptroller of the Currency

The Office of the Comptroller of the Currency (OCC) released a request for information on how the Volcker Rule (section 13 of the Bank Holding Company Act) should be revised to “better accomplish the purposes of the statute.” Comments are due by September 21.

Consumer Financial Protection Bureau

The CFPB released a final rule and official interpretation modifying the Federal mortgage disclosure requirements under the Real Estate Settlement Procedures Act and Truth in Lending Act that are implemented in Regulation Z. The rule is final as of October 10, however mandatory compliance begins October 1, 2018. Additionally, the CFPB announced a proposed rule for the same Acts and Regulation Z. Comments are due by October 10.

Department of Agriculture

USDA released a final rule amending the scope and applicability of its uniform rules of practice “governing adjudicatory proceedings to include actions initiated under subtitles B and D of the Agricultural Marketing Act of 1946.”

The Department announced it was withdrawing  proposed rule that would have defined “a low-risk classical swine fever region in Mexico from which we would have allowed the importation of fresh pork and pork products into the United States under certain conditions.”

Department of the Army

The Army is calling for nominations for the Advisory Committee on Arlington National Cemetery. Nominations must be received by November 1.

Department of Commerce

The Department announced that it had made an affirmative preliminary determination in the countervailing duty investigation of aluminum foil from China. Commerce will instruct the Customs and Border Protection to collect cash deposits from importers of aluminum foil that represent the subsidies, ranging from 16.56 to 80.97 percent.

The Department of Commerce announced an affirmative preliminary determination in the countervailing duty investigation of silicon metal from Brazil, Kazakhstan, and Australia, with subsidies of 3.69 to 52.07 percent, 120 percent, and 16.23 percent, respectively. CBP will be instructed to collect cash deposits from importers to reflect those percentages.

Department of Education

The Department announced that it was extending the comment period for public input on which department regulations may be appropriate for repeal, replacement, or modification. The comment period will now be open until September 20.

The Department established new deadlines for submitting notices of intent to file alternate earnings appeals for its Gainful Employment Rule, in addition to announcing what additional information that will be considered when evaluating alternate earnings appeals. Comments must be submitted by September 17, and the notice of intent to file an alternate earnings appeal is October 6.

Department of Health and Human Services

HHS announced that the Interdepartmental Serious Mental Illness Coordinating Committee (ISMICC) will hold its first meeting on August 31. Pre-meeting comments should be submitted by August 24, and those interested in making oral presentations at the end of the meeting should submit their intention by that day, as well.

HHS is soliciting comments on delaying the effective date of the January 5, 2017 final rule for the 340B Drug Pricing Program. HHS proposes to delay the effective date until July 1, 2018. Comments must be received by September 20.

Department of the Interior

The Fish and Wildlife Service announced a proposed rule to increase hunting activities at nine National Wildlife Refuges, open one to sport fishing, and add pertinent refuge-specific regulations for others. Comments must be submitted by September 9.

In response to Secretarial Order 3353, “Greater Sage-Grouse Conservation and Cooperation with Western States,” which was issued on June 7, the Interior Sage-Grouse review Team issued their report.

After reviewing Arizona’s Grand Canyon-Parashant National Monument per President Trump’s April 26 Executive Order, Interior Secretary Ryan Zinke announced a recommendation that no changes be made. He made the same announcement regarding the Sand to Snow National Monument in California.

Secretary Zinke announced that Interior, through the Bureau of Land Management, would begin “to finalize the process on whether to accept the donation of 3,595 acres,” which would become part of the Sabinoso Wilderness in New Mexico. The inclusion of this land would “make the Sabinoso Wilderness area accessible to hunters and all members of the public for the first time ever.” 

Department of Justice

The Department announced two new programs relating to the advancement of forensic science. The Department will “develop Uniform Language for Testimony and Reports to give clear guidance to what the Department’s forensics examiners may discuss in a courtroom, and direct prosecutors to follow the same guidelines.” Additionally, it will develop new forensic examiner testimony-monitoring to ensure compliance. 

Department of Labor

The Department announced $1.3 million to “help more women access quality apprenticeship programs and pursue careers in advanced manufacturing, energy, healthcare, information technology, and transportation, among others.”

Department of Veterans Affairs

The VA is requesting comment in implementing section 304 of the Veterans Health Care and Benefits Improvement Act of 2016, which requires a study on the feasibility and need for providing increased interments in VA national cemeteries on Saturdays and Sundays. Comments are due by September 8.

Environmental Protection Agency

The EPA announced a proposed rule that would amend the national Emission Standards for Hazardous Air Pollutants for Off-Site Waste and Recovery Operations to address issues “related to monitoring pressure relief devices on containers.” Comments are due by September 21. 

The EPA announced a final rule, establishing a retrospective electronic notification of chemical substances on the TSCA Inventory that were manufactured for nonexempt commercial purposes during the 10-year period ending on June 21, 2016.

Federal Communications Commission

The FCC announced a proposed rule to “prohibit carriers from misrepresenting themselves when placing telemarking sales calls to consumers and placing unauthorized charges on their phone bills.” Comments are due by September 13. 

Federal Motor Carrier Safety Administration

On August 8, FMCSA, in conjunction with the Federal Railroad Administration, released a withdrawal of its advance notice of proposed rulemaking (ANPRM) “concerning the prevalence of moderate-to-severe obstructive sleep apnea (OSA) among individuals occupying safety sensitive positions in highway and rail transportation.” The original ANPRM was published on March 10, 2016.

FMCSA has proposed amending its rulemaking procedure “by revising the process for preparing and adopting rules, petitions, and direct final rules.” Comments are due by October 6.

Small Business Administration

The SBA released a request for information on “identifying which of the Agency’s regulations should be repealed, replaced or modified because they are obsolete, unnecessary, ineffective, or burdensome.” Comments are due by October 14.

Surface Transportation Board

The Rail Energy Transportation Advisory Committee is looking to fill two vacancies: a representative from biofuel feedstock growers or providers and biofuel refiners, processors, and distributors; as well as an “at large” representative with relevant experience in the transportation of energy resources.” Nominations are due by August 30.


August 3, 2017

It’s Week 28 of the Trump presidency. Both the House and Senate (at the end of the day) are gone for August recess! When they return on September 5, the Chambers will have only 12 working days that they are both in session before government funding expires.

The Department of Commerce and the International Trade Administration announced four trade missions that will take place in 2018. The missions include the Smart grid and Energy Storage Business Development trade mission to India in March; the Trade Americas-Business Opportunities in the Caribbean Region Conference in May; the 10th Annual U.S. Industry Program at the IAEA General Conference trade mission in Vienna, Austria in September; and an oil and gas mission to Rio de Janeiro, Brazil also in September. Application and more detailed information can be found here, and a summary of each mission can be found here.

PRESIDENTIAL ACTION

This week, President Trump signed H.R. 3364, the Countering America’s Adversaries Through Sanctions Act. The Act directs the President to place sanctions upon Russia, North Korea, and Iran. Notably, the Act also requires congressional review before the President can terminate or wave sanctions relating to Russia. President Trump took the unusual step of issuing two signing statements, one of which states that the President “built a truly great company worth many billions of dollars… As President, I can make far better deals with foreign countries than Congress.”

  • Statement by President Donald J. Trump on Signing the “Countering America’s Adversaries Through Sanctions Act”
  • Statement by President Donald J. Trump on the Signing of H.R. 3364

The President’s Commission on Combating Drug Addiction and the Opioid Crisis, which was created in a March 29th Executive Order, released its interim report. Among its recommendations is to declare a national public health emergency; increase treatment capacity; mandate prescriber education initiatives; establish a federal incentive to enhance access to Medication-Assisted Treatments; provide model legislation for states to allow naloxone dispensing via standing orders; enforce the Mental Health Parity and Addiction Equity Act; and provide federal funding and technical support to states to enhance interstate data sharing among state-based prescription drug monitoring programs.

RULEMAKING PROCESS/AGENCY ACTION

Centers for Medicare and Medicaid Services

The Centers for Medicare and Medicaid Services released a final rule updating the hospice wage index, payment rates, and cap amount for FY18. The regulation will take effect October 1.

CMS issued a final rule updating the prospective payment rates for inpatient rehabilitation facilities for FY18. Additionally, the rule revised the ICD-10-CM diagnosis codes that are used to determine presumptive compliance under the “60 percent rule.” The regulation will go into effect on October 1.

CMS issued a final rule that updates the payment rates used under the prospective payment system for skilled nursing facilities (SNF) for FY18 and revises the market basket index. Additionally, the rule revises the SNF Quality Reporting Program. The regulation will go into effect on October 1.

The Centers for Medicare and Medicaid Services released a final rule revising the Medicare hospital inpatient prospective payment systems (IPPS) for operating and capital-related costs of acute care hospitals to implement changes for FY18. The rule will go into effect on October 1.

Department of Agriculture

The Fruit and Vegetable Industry Advisory Committee is seeking nominations to fill ten vacancies. Nominations must be postmarked by September 1. Complete information on FVIAC and the nomination process can be found here.

The Department is currently accepting applications for loans to provide and expand broadband service in rural areas. USDA is expected to make $60million available for loans ranging in size from $100,000 to $20million. The deadline for applying is September 30.

Department of Education

The Department reversed its May plan to award all federal student loan servicing to a single company, cancelling the current student loan solicitation. Instead, Secretary DeVos announced that the FSA Next Generation Processing and Servicing Environment will “require separate acquisitions for database housing, system processing and customer account servicing.”

Department of Energy

The Department called for interested and effected parties to submit comments and information on whether to amend DOE’s “test procedure for small electric motors, and whether new test procedures are needed for motors beyond those subject to the existing Federal test procedures.” All comments must be received be August 30.

Department of Health and Human Services

The Office for Human Research Protections within HHS announced that it is seeking nominations for the Secretary’s Advisory Committee on Human Research Protections. Nominations must be received by September 18. More information on the Committee and the nomination process can be found here.

Department of the Interior

Secretary Zinke announced that he would recommend no changes to the Upper Missouri River Breaks National Monument located in Montana.

The Department announced a “revised strategy for the consolidation of fractional land interests through the Land Buy-Back Program for Tribal Nations (Program).” The Program takes into account comments that were received during the open comment period, as well as the Department’s Listening Session.

Department of Justice

The Department announced that “in order to be selected for participation in the Department’s Public Safety Partnership (PSP) program, local jurisdictions must show a commitment to reducing crime stemming from illegal immigration. DOJ details the new requirements in letters to jurisdictions that have expressed interest in the PS

DOJ announced the formation of the Opioid Fraud and Abuse Detection Unit, a pilot program to help combat the opioid crisis.

Department of the Treasury

The Department announced that it will “wind down” the myRA program after it was found not to be cost effective.

Environmental Protection Agency

The EPA announced that it was reversing a decision by EPA Administrator Scott Pruitt to delay the deadline for designating which areas of the country met new ozone standards. The decision allows an October 2015 regulation setting aimed at cutting air pollution and lowering the level of ozone emissions from burning fossil fuels to take effect October 1. The decision comes after 16 states sued the Administration to stop the delay.

Federal Motor Carrier Safety Administration

FMCSA released regulatory guidance “clarifying that State Driver Licensing Agencies (SDLAs) may agree to facilitate the commercial learner’s permit (CLP) application process and to administer the commercial driver’s license (CDL) general knowledge test to individuals who are not domiciled in the State.” The guidance is consistent with the October 13, 2016 final rule on CDL regulations. The guidance was applicable as of August 3.

Federal Transit Administration

The FTA released a Notice of Proposed Rulemaking to “address impediments to the greater use of public-private partnerships (P3s) and private investment in public transportation capital projects (Private Investment Project Procedures of PIPP).” The comments will be used to develop more effective approaches to, among other things, design, construction, and operation of projects. All comments must be submitted by September 29.

Financial Oversight and Management Board for Puerto Rico

The FOMB, as required by PROMESA, released its first annual report for FY17.

Food & Drug Administration

The FDA announced a new plan for tobacco and nicotine regulation. This comprehensive plan will include Advance Notice of Proposed Rulemaking on the role that flavors in tobacco products play in attracting youth and the patters of use and resulting public health impacts from premium cigars.

General Services Administration

The GSA announced an extension on their request for comments on a number of items. Comments on Existing Acquisition Regulations, Federal Management and Federal Property Regulations, Federal Travel Regulation, and Existing Leasing Acquisition Regulations should now be received by August 14.

International Trade Administration

The International Trade Administration announced that it is currently seeking applications for travel and tourism leaders to be members of the Board of Directors of the Corporation for Travel Promotion (dba Brand USA). Applications must be received by September 29.

The ITA is seeking up to twelve individuals for appointment to the U.S. Section of the U.S.-Brazil CEO Forum. Terms are three years and begin on October 1. Applications must be received by August 25.

National Oceanic and Atmospheric Administration

After a June 26 notice that NOAA was conducting a review of all of the National Marine Sanctuaries and Marine National Monuments, NOAA announced that it was reopening the comment period that had expired on July 26. Comments are due by August 14.

United States Trade Representative

USTR announced that the interagency Trade Policy Staff Committee is seeking comment as it begins to prepare its annual report to Congress on China’s compliance with commitments with its accession to the WTO. Written comments must be received by September 20. Additionally, USTR will hold a public hearing on the same subject on October 4. Requests to appear at the TPSC hearing must also be received by September 20.

USTR announced that the interagency Trade Policy Staff Committee is seeking comment as it begins to prepare its annual report to Congress on Russia’s compliance with its WTO commitments. Written comments and requests to appear before the September 28 hearing must be received by September 22.

In preparation for releasing its annual National Trade Estimate Report on Foreign Trade Barriers, USTR is soliciting comments in “identifying significant barriers to U.S. exports of goods, services, and U.S. foreign direct investment.” Comments must be received by October 25.

USTR announced country-specific reallocations of FY17 WTO tariff-rate quota volume of raw cane sugar. Additionally, they announced revised FY17 tariff-rate quota allocations for raw can sugar.

July 27, 2017

It’s Week 27 of the Trump presidency. The House is expected to leave tomorrow upon completion of the security minibus and any remaining small items (though Members were informed to have flexible travel plans through Tuesday in case they need to take up Senate-passed health care). The Senate may stay in for the next two weeks. There are 13 legislative days until government funding expires.

The Office of the United States Trade Representative has asked for comment on all existing bilateral, plurilateral, and multilateral trade agreements and investment agreements to which the U.S. is a part. Specifically, they are looking for comment on harm to American workers, including the offshoring of factories and jobs and downward pressure on wage and income growth; harm of intellectual property rights, the rate of innovation, or research and development in the United States; and unmet predictions on new jobs created, favorable trade balance effects, expanded market access, lowered trade barriers, or increased United States exports but have made it clear that they will take comments on anything. Comments are due July 31.

PRESIDENTIAL ACTION

This week, President Trump signed one Executive Order.

Assessing and Strengthening the Manufacturing and Defense Industrial Base and Supply Chain Resiliency of the United States (July 21)

The order instructs the Secretary of Defense, in conjunction with the Secretaries of Labor, Commerce, Energy, Homeland Security, Interior and HHS (joined by the OMB Director, the DNI, and others) to produce an unclassified report within 270 days that identifies the military and civilian materials and other goods that are essential to national security; identifies the manufacturing capabilities essential to those; identifies the defense, intelligence, homeland, economic, natural, geopolitical, or other contingencies that may  disrupt, strain, compromise, or eliminate the supply chains of goods identified; assess the resiliency and capacity of the manufacturing and defense base and supply chains; and identifies the causes of that are assessed as deficient. Additionally, the report with recommend legislative, regulatory or policy changes to strengthen the U.S. manufacturing capacity and defense industrial base and ameliorate any aspect assessed as deficient.

Though President Trump tweeted yesterday about a change in military policy regarding transgender members of the service, the Department of Defense says that there will be no immediate change until they receive guidance from the White House. Formal guidance does not yet exist.

RULEMAKING PROCESS/AGENCY ACTION

Center for Medicare and Medicaid Services

CMS issued a proposed rule updating the home health prospective payment system (HHPPS) payment rates, effective for home health care ending on or after January 1, 2018. Comments must be received by September 25.

Department of Agriculture

Agriculture Secretary Sonny Perdue hosted the second meeting of the Agriculture and Rural Prosperity Task Force, which was created by an April 23 Executive Order on July 25. The Task Force provided an update on the progress of four working groups, which focus on the quality of life in rural America; economic development; innovation, technology, and date; and the rural workforce.

Department of Commerce

The International Trade Administration’s U.S. Commercial Service, in conjunction with the Northern Ohio District Export Council, announced a conference “aimed at helping American companies in the advanced manufacturing, automotive, and aerospace industries compete more effectively in global markets.” The U.S. Manufacturers to Europe & Beyond event will be held September 18-20 in Cleveland. In addition to meeting with procurement specialists from large OEMs, attendees will have the opportunity to schedule meetings with U.S. trade experts stationed in Germany, France, Sweden, the United Kingdom, Ireland, Belgium, Romania, Lithuania, Poland, Mexico, Canada, Italy, Spain, and Portugal, among others. More information about the conference can be found here.

Commerce Secretary Wilbur Ross announced an affirmative final determination for the antidumping duty investigation on steel concrete reinforcing bar from Taiwan.

Department of Education

The Department announced that the President’s donation of his second quarter salary, totaling approximately $100,000, will be used to fund a STEM-focused camp for students.

The Department of Education announced a request for comment on accrediting agencies or state approval agencies that are currently under review. Comments must be received by August 13. Among the groups whose review and evaluation is currently underway by the Accreditation Group includes the American Physical Therapy Association; Accreditation Commission for Education in Nursing, Inc.; Higher Learning Commission; and the Middle States Commission on Higher Education.

The Department of Education released a final rule with request for comments “in order to better align the regulations with the definition of ‘evidence-based’ in the statutory authority” that apply to direct grant programs. These will go into effect on July 31, and comments will be due by August 30.

Department of Energy

The Office of Energy Efficiency and Renewable Energy released a Request For Information (RFI) on their testing procedures for commercial package air conditioning and heating equipment. Comments are due by August 24.

Department of Health and Human Services

HHS announced that it was seeking applicants to serve on the Health Information Technology Advisory Committee, which will “make recommendations to the National Coordinator on a policy framework to advance an interoperable health information technology infrastructure.” Applications must be received August 4.

Department of the Interior

Interior Secretary Ryan Zinke announced $50 million in funding for the National Park Service for high priority maintenance and infrastructure projects at 42 parks. $20 million will come from the Centennial Challenge, and $33 million will come from 50 park partners.

Secretary Zinke announced that he would recommend no changes to the Canyons of the Ancients National Monument in Colorado.

The Bureau of Land Management announced that it was proposing to rescind the “Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands” published on March 26, 2015. Comments must be received by September 25.

Department of Labor

The Wage and Hour Division released a Request for Information regarding the regulations at 29 CFR part 541, which define and delimit exemptions from the FLSA’s minimum wage and overtime requirements for certain executive, administrative, professional, outside sales and computer employees. Comments should be received by September 25.

The Department of Labor issued a call for nominations for those wishing to serve on the Task Force on Apprenticeship Expansion. The Task Force will identify strategies and proposals to promote apprenticeships. More information, including how to apply, can be found here.

Department of the Treasury

The Department announced final regulations defining the term “controlled group” in section 9008 of the Patient Protection and Affordable Care Act. The final regulations affect those involved in the business of manufacturing or importing certain branded prescription drugs. The regulations were effective July 24.

Treasury announced final regulations relating to the health insurance premium tax credit, and the regulations affect individuals who enroll in qualified health plans through Affordable Insurance Exchanges and claim the premium tax credit. The regulations were effective July 24.

Department of Veterans Affairs

The VA issued a final rule governing the approval of a community residential care facility (CRC). A proposed rule was issued on November 12, 2015, and there were only four public comments on it. The final rule will go into effect on August 24.

The Department released a proposed rule to amend its regulations concerning the VA Homeless Providers Grant and Per Diem Program. Comments must be received by September 25.

Environmental Protection Agency

The EPA issued a proposed rule to retain the current standards for air quality criteria addressing human health effects of oxides of nitrogen and the primary national ambient air quality standards (NAAQS) for nitrogen dioxide. Comments must be received by September 25.

In conjunction with the Department of the Army Corps of Engineers, the EPA issued a proposed rule “to initiate the first step in a comprehensive, two-step process intended to review and revise the definition of “waters of the United States” consistent with the Executive Order signed on February 28, 2017, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.’” Comments must be received by August 26.

Pipeline and Hazardous Materials Safety Administration

PHMSA released a notice of comment solicitation on issues being considered during the 51st and 52nd sessions of the United Nations Subcommittee of Experts on the Transport of Dangerous Goods. Comments must be received by November 17.

Rural Utilities Service

The RUS announced a second application window for FY17 for the Rural Broadband Access Loan and Loan Guarantee Program, as is required by the 2014 Farm Bill. At least $60 million is available for applications, which will be accepted through September 30. Applications will be reviewed, evaluated, and processed as they are received.


July 20, 2017

It’s Week 26 of the Trump presidency. There are only 5 legislative days until the start of August Recess, as your writer only counts days when both chambers are in session, and 17 legislative days until government funding expires.

The Office of the United States Trade Representative has asked for comment on all existing bilateral, plurilateral, and multilateral trade agreements and investment agreements to which the U.S. is a part. Specifically, they are looking for comment on harm to American workers, including the offshoring of factories and jobs and downward pressure on wage and income growth; harm of intellectual property rights, the rate of innovation, or research and development in the United States; and unmet predictions on new jobs created, favorable trade balance effects, expanded market access, lowered trade barriers, or increased United States exports but have made it clear that they will take comments on anything. Comments are due July 31.

PRESIDENTIAL ACTION

This week, President Trump signed one Executive Order.

Establishing a Presidential Advisory Council on Infrastructure (July 19)

The order creates the Presidential Advisory Council on Infrastructure to be housed within the Department of Commerce. The council will be comprised of members of varied backgrounds, including those with expertise in economic development, labor, construction, transportation and logistics, among others. The Council is tasked with studying and making recommendations to the president on federal government funding support and delivery of infrastructure projects. Among the things they will examine is accelerating the pre-construction approval process; promoting advanced manufacturing; and identifying methods to increase public-private partnerships for infrastructure projects. The Council will terminate on December 31, 2018 unless extended by the President.

Additionally, the Trump Administration published the semi-annual Certified Agenda of Regulatory and Deregulatory Actions. It states that 469 actions have been withdrawn that were proposed in the second half of 2016. The Trump Administration further states that the regulatory actions have “produced an annualized cost savings estimated at $22 million.”

RULEMAKING PROCESS/AGENCY ACTION

Department of Agriculture

The Department issued a request for comment, in accordance with Executive Order 13777, asking for public ideas on regulations, guidance documents, or policy documents that are in need of reform. Comments are due July 17, 2018, though the cut-off for the first group review is September 15, the second cut-off is November 14, and the third cut-off is February 12, 2018.

Department of Education

In May, the Department of Education released a Request for Information on soliciting “ideas and information related to the major features and types of commonly assessed fees that postsecondary institutions (institutions) must disclose under Department regulations with regard to each of the institution’s Tier 1 (T1) or Tier 2 (T2) arrangements.”  The Department announced that it was extending the compliance period until January 1, 2018 for institutions that adopt the final format.

Department of Health and Human Services

HHS announced the establishment of the Tick-Borne Disease Working Group and to request nominations for those who would like to serve on the Working Group. Nominations must be received no later than August 16.

Department of Homeland Security

DHS announced that, in consultation with the Department of Labor (Wage and Hour Division), it was increasing by 15,000 the number of H-2B nonimmigrant visas issued through the year of FY17.

Department of the Interior

Interior Secretary Ryan Zinke announced an intention to create an America Recreation Advisory Committee, which will “focus on expanding public-private partnerships on America’s public lands.”

Department of Justice

Attorney General Jeff Sessions released a new policy directive on federal asset seizure. The new policy allows assets to be seized even when the state or local municipality forbids the procedure.

Department of the Treasury

In conjunction with U.S. Customs and Border Protection, the Department announced that user fees and limitations established by the Consolidated Omnibus Budget Reconciliation Act (COBRA) will be adjusted for inflation in accordance with the FAST Act. Comments are due by August 16.

The IRS issued final and temporary regulations governing the due dates and extensions for certain tax returns and information returns for taxpayers who file using forms including W-2 (series, except For W-2G); Form W-3, Form 990 (series); and Form 4720.

Environmental Protection Agency

The EPA issued a final rule that “establishes process for conducting risk evaluations to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation, under the conditions of use.” The rule is effective as of September 18.

United States Trade Representative

USTR announced the release of the Negotiating Objectives for NAFTA renegotiations. Additionally, they announced that the first round of negotiations between the U.S., Canada, and Mexico would take place August 16-20 in Washington, D.C. John Melle, Assistant U.S. Trade Representative for the Western Hemisphere will serve as Chief Negotiator for the NAFTA negotiations.

In conjunction with the Department of the Treasury, USTR announced its intent to sign the Bilateral Agreement between the U.S. and the European Union on Prudential Measures Regarding Insurance and Reinsurance.

LEGISLATION

The House passed H.R. 806, the Ozone Standards Implementation Act of 2017, sponsored by Rep. Pete Olson (R-TX) on a 299-199 vote. The bill would delay the implementation of the EPA air pollution standards, which were issued in 2015, by eight years.


July 13, 2017

It’s Week 25 of the Trump presidency. There are only 10 legislative days until August Recess (though Mitch McConnell said Tuesday the Senate will be in the first two weeks of August, the House says it will not so my count still reflects the days that both chambers are in session) and 22 legislative days until government funding expires.

The Office of the United States Trade Representative has asked for comment on all existing bilateral, plurilateral, and multilateral trade agreements and investment agreements to which the U.S. is a part. Comments are due July 31.

As Regulatory Report took a brief recess, the following coverage covers the period since June 23, thus this edition is quite lengthy.

PRESIDENTIAL ACTION

During the past several weeks, President Trump signed two Executive Orders.

Allowing Additional Time for Recognizing Positive Actions by the Government of Sudan and Amending Executive Order 13761 (July 11)

The order delays the date by which the President must decide whether to revoke the economic sanctions currently placed on Sudan. The decision was originally due by July 13 but will now be extended until October 12.

Reviving the National Space Council (June 30)

The order reestablishes the National Space Council (first created in 1989 and ceased operation in 1993), which will meet at least once a year. The Council is tasked with advising and assisting the President on issues “regarding national space policy and strategy.” Specifically, the Council will review U.S. space policy and develop a national strategy and recommendations; monitor and implement the President’s national space policy; foster cooperation and coordination among various sectors that have an interest in space; and advise on participation in international space activities.

RULEMAKING PROCESS/AGENCY ACTION

Centers for Medicare & Medicaid Services

The Medicare Trustees today projected that the trust fund, which finances Medicare’s hospital insurance coverage will be depleted in 2029. Because spending levels also did not exceed targeted levels, the Independent Payment Advisory Board created by the ACA was not triggered.

CMS announced a proposed rule to make revisions to the End-Stage Renal Disease (ESRD) Prospective Payment System for 2018 and update the payment rate for renal dialysis services for those with acute kidney injury. Comment are due by August 28.

CMS announced the final rule governing the Medicaid Eligibility Quality Control (MEQC0 and Payment Error Rate Measurement (PERM) programs based on Medicaid and CHIP changes in the ACA. These changes are effective August 4.

The Medicare and Medicaid Programs: Conditions of Participation for Home Health Agencies final rule, which had an original effective date of July 13, 2017 will be delayed until January 13, 2018.

CMS announced a proposed rule revising the Medicare hospital outpatient prospective payment system (OPPS) and the Medicare ambulatory surgical center payment system for 2018. Comments are due by September 11.

The Centers for Medicare & Medicaid Services proposed a major rule to change the Medicare physician fee schedule and other Medicare Part B payment policies. Comments are due by September 11.

Consumer Financial Protection Bureau

The CFPB announced policy guidance on its supervisory and enforcement priorities for its 2016 Mortgage Servicing Final Rule.

Department of Commerce

The Department announced new antidumping and countervailing duty investigations on the importation of citric acid and certain citrate salts from Belgium, Colombia and Thailand.

The Department of Commerce announced a preliminary affirmative determination in the antidumping investigation of softwood lumber from Canada. The Department found that exporters from Canada have sold softwood lumber at 7.72 to 4.59 percent less than fair market value.

The Department issued a final determination in the antidumping case of emulsion styrene-butadiene rubber from Poland, Korea, Mexico, and Brazil, which found that the product was being sold in the U.S. at unfair prices.

Department of Education

The Department of Education issued a final regulation, effective June 30, to make conforming changes to the Individuals with Disabilities Education Act (IDEA) Parts B and C to implement statutory amendments made by the Every Student Succeeds Act.

The Department announced that it was allowing institutions of higher learning until July 1, 2018 to comply with its gainful employment rule. The compliance date was originally postponed in March. Comments to this change are due by August 4.

Department of Homeland Security

DHS announced that it was delaying the effective date for the International Entrepreneur Final Rule and will seek comment on whether to rescind the rule pursuant to Executive Order 13767. The new effective date will be March 14, 2018 and comments should be submitted before August 10.

DHS, in conjunction with the Department of the Treasury and U.S. Customs and Border Protection, announced a final rule that extends import restrictions on Pre-Classical and Classical archaeological objects, and Byzantine and post-Byzantine ecclesiastical and ritual ethnological materials from Cyprus, which was scheduled to expire on July 16. The restrictions will now run for an additional five years through July 16, 2022. 

Department of Housing and Urban Development

HUD and Ministry of Land, Infrastructure, Transport and Tourism of Japan (MLIT) announced a plan to “work cooperatively on researching innovated approaches to housing both nation’s vulnerable senior populations.”

Department of the Interior

The Department requested public comment on a new 5-year National Offshore Oil and Gas Leasing Program on the Outer Continental Shelf. The comment period is part of the President’s Executive Order on American Energy, which was signed on April 28. Comments are due by August 17.

Interior Secretary Ryan Zinke announced that President Trump’s first quarter salary would be donated toward the restoration of two projects at the Antietam National Battlefield. Also included in the announcement was $7.2 million in grants for other historic battlefields.

The Department announced that 75.9 million acres of the shores of Florida, Alabama, Louisiana, Texas, and Mississippi would be available for oil and gas exploration and development at the August 16 lease sale. All information on Lease Sale 349 can be found on the Bureau of Ocean Energy Management website.

As part of President Trump’s Executive Order to review the designation of existing national monuments, Secretary Zinke announced that he will recommend that the Craters of the Moon National Monument in Idaho and Hanford Reach National Monument in Washington receive no modification. Those two monuments will no longer be under review.

Secretary Zinke signed Secretarial Order 3354 to “ensure than quarterly lease sales are consistently held and to identify other ways the Department of the Interior may promote the exploration and development of both Federal onshore oil and gas resources and Federal solid mineral resources.” The order directs the Bureau of Land Management to address the permitting backlog and identify areas where improvements can be made in the permitting process.

Department of Justice

The Department issued a request for comment, in accordance with Executive Order 13777, for its Department of Justice Task Force on Regulatory Reform. The Task Force asks for comments on actions that “should be repealed, replaced, or modified, consistent with applicable law.” Comments are due August 14.

Department of Labor

The Department of Labor published a request for comment in connection with its examination of the final fiduciary rule. Comments relating to extending the January 1, 2018 applicability date are due by July 21, and all other comments are due by August 7.

The Department announced that it will reinstate the issuance of opinion letters, which will allow the Wage and Hour Division to use such letters as “one of its methods for providing guidance to covered employers and employees.”

The Department announced $15 million in grants to state workforce agencies to develop “flexible and innovative strategies to increase the participation of people with disabilities in federally funded employment and training programs.” The grants are available from the Disability Employment Initiative.

Department of State

The Department issued a request for comment, in accordance with Executive Order 13771, to identify “existing regulations, paperwork requirements and other regulatory obligations that can be modified or repealed… to achieve a meaningful burden reduction.” Comments must be submitted by August 13. 

Department of Transportation

The Department announced the Infrastructure for Rebuilding America (INFRA) discretionary grant program, which will make $1.5 billion available to “projects that are in line with the Administration’s principles to help rebuild America’s crumbling infrastructure.” Applications are due by November 2.

Department of the Treasury

Through its review of the Department’s regulations, as required by Executive Order 13789, Treasury and the Internal Revenue Service identified eight regulations that are “burdensome” and should be eligible for changes.

The Department announced a final regulation allowing the IRS Commissioner to adopt “a streamlined application process” for organizations seeking 501(c)(3) tax-exempt status. The rules went into effect on June 30.

Environmental Protection Agency

The EPA announced that it had signed a proposed rule setting the minimum amount of renewable fuels that must be supplied in 2018 under the Renewable Fuel Standards (RFS) program. A public hearing will be held on August 1 for the RFS 2018 Standards and the Biomass-Based Diesel Volume for 2019.

EPA, in conjunction with the Army Corps of Engineers, released a pre-publication version of a proposed rule to repeal the Waters of the United States rule.

Federal Motor Carrier Safety Administration

FMCSA announced that it will conduct an electronic logging device (ELD) Implementation National Tour, which if geared toward helping commercial motor vehicle drivers transition to ELDs. The tour will make stops at the Iowa 80 Truckstop Jamboree in Walcott, Iowa; the Great American Trucking Show in Dallas; the North American Commercial Vehicle Show in Atlanta; the California Trucking Show in Ontario, California; the American Trucking Associations Management Conference and Exhibition in Orlando; and the Women in Trucking Accelerate! Conference & Expo in Kansas City, Missouri.

Federal Railroad Administration

The FRA announced a final rule implementing a pilot program that allows for “competitive selection of eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes operated by Amtrak.” The rule is effective as of September 5.

Federal Trade Commission

The FTC released a modified ten-year regulatory review schedule, effective June 28. In 2017, the FTC will (or is already) reviewing: Guides for the Jewelry, precious Metals, and Pewter Industries; Guide Concerning Fuel Economy Advertising for New Automobiles; Trade Regulation Rule Pursuant to the Telephone Disclosure and Dispute Resolution Act of 1992; Telemarketing Sales Rule; Standards for Safeguarding Customer Information; Contact Lens Rule; Care Labeling of Textile Wearing Apparel and Certain Piece Goods; Ophthalmic Practice Rules (Eyeglass Rule); Labeling and Advertising of Home Insulation; Disposal of Consumer Report Information and Records; CAN-SPAM Rule; and the Deceptive Advertising as to Sizes of Viewable Pictures Shown by Television Receiving Sets.

The Commission announced a proposed rulemaking that would amend the Textile Rules to remove the requirement that an owner of a “registered word trademark furnish the FTC with a copy of the mark’s registration with the United States Patent and Trademark Office (“USPTO”) before using the mark on labels, and to no longer restrict the use of such trademarks to only those also employed as house marks.” Comments are due by July 31. 

National Highway Traffic Safety Administration

NHTSA announced that it was delaying indefinitely the effective date of the Civil Penalties final rule, which was published on December 28, 2016. Further, NHTSA is requesting comment on the increase in the civil penalty rate for CAFE standard violations. Comments are due by October 10. 

Social Security Administration

The Social Security Board of Trustees released its yearly report, entitled The 2017 Annual Report of the Board of Trustees of the Federal Old-Age and Survivors Insurance and Federal Disability Insurance Trust Funds. The report indicates that there is enough funding to pay full benefits of the Social Security Disability Insurance program until 2028 and the Old Age and Survivors Insurance program through 2035.

United States Trade Representative

USTR announced the completion and outcome of their review of the Generalized System of Preferences (GSP).

United States Trade Representative Robert Lighthizer formally notified the Republic of Korea that the U.S. is calling a Joint Committee meeting to begin the process of negotiating to remove barriers to U.S. trade and consider needed amendments to KORUS.

USTR announced country-specific import allocations for sugar (raw cane, refined, specialty, and sugar-containing products) under the tariff-rate quotas for FY2018.

LEGISLATION

The Senate released an updated version of its Better Care Reconciliation Act (BCRA). For more information, see the Prime Healthcare team’s update from earlier today. We will also have more details and reaction in tomorrow’s edition of Healthcare Today.


June 22, 2017

It’s Week 22 of the Trump presidency. There are only 19 legislative days until August Recess and 31 legislative days until government funding expires.

Please note that Regulatory Report will be taking a 4th of July recess, so next week’s edition will be followed by the next edition on July 13th.

PRESIDENTIAL ACTION

This week, President Trump signed one Executive Order.

Amending Executive Order 13597 (June 22)

The order removes subsection (b)(ii) of section 2 of Executive Order 13597, which required that 80 percent of nonimmigrant visa applicants were interviewed within 3 weeks of the receipt of their application. This Executive Order requires the Secretaries of State and Homeland Security to revise the implementation plan described in the original executive order.

Last Friday, as mentioned in last week’s report, the President made changes to the U.S. policy towards Cuba. As expected, the changes do not include closing the U.S. embassy or reinstating the “wet foot, dry foot” policy for Cuban immigrants. The Memorandum states that it will be Administration policy to “economic practices that disproportionately benefit the Cuban government or its military, intelligence, or security agencies or personnel at the expense of the Cuban people; Ensure adherence to the statutory ban on tourism to Cuba; Support the economic embargo of Cuba described in section 4(7) of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 (the embargo)…; and Amplify efforts to support the Cuban people through the expansion of internet services, free press, free enterprise, free association, and lawful travel.”

RULEMAKING PROCESS/AGENCY ACTION

Department of Agriculture

USDA Secretary Sonny Perdue held a trilateral agricultural meeting with his counterparts from Mexico and Canada, seen as a prelude to NAFTA renegotiation meetings, which can begin in August. The readout from the meetings held in Savannah, Georgia spoke of the “mutual understanding and personal relationships that will help North American agriculture thrive, improve our regional partnership and collaboration, and strengthen our trading relationship.”

 

The Department issued two proposed rules that would allow foreign produce to be imported into the U.S. The first deals with tree tomatoes from Ecuador and the second with pomegranate fruit from Turkey. Comments are due for both by August 21.

Department of Defense

The Department of Defense, Defense Federal Acquisition Regulation Supplement issued a request for comment, in accordance with Executive Order 13777, on how it regulations that could be repealed, replaced, or modified. Comments are due by August 21.

Department of Education

The Department of Education issued a request for comment, in accordance with Executive Order 13777, on how it regulations that could be repealed, replaced, or modified. Comments are due within 60 days.

The Department announced beginning July 1, 2017 that Year Round Pell grants will be available to students. The change allows those eligible to receive up to 150% of the Federal Pell Grant Scheduled Award beginning with the 2017-2018 school year. Details of the plan and its implementation can be found in the Department’s Dear Colleague letter.

Department of Homeland Security

DHS Secretary John Kelly signed a memorandum rescinding the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) that was created by the Obama Administration in 2014. The rescission does not affect the Deferred Action for Childhood Arrivals program that deals with “Dreamers.”

Department of the Interior

The Department issued a request for comment, in accordance with Executive Order 13777, on how it “can improve implementation of regulatory reform initiatives and policies and identify regulations for repeal, replacement, or modification.” There is no specific due date for comments, and they will be considered on an ongoing basis.

Federal Communications Commission

The FCC released a final rule addressing the Rural Health Care (RHC) Program that defines “health care provider.” The final rule expands the definition to include skilled nursing facilities as eligible to receive support. The rule was effective June 21.

 

Food and Drug Administration

The FDA announced that it would hold a meeting on July 18 focusing on generic drugs. The deadline for submitting comments is September 18.

Surface Transportation Board

The Surface Transportation Board will be holding a listening session for the Regulatory Reform Task Force (RRTF) on July 25. Those not able to attend can submit written comments prior to the session.

LEGISLATION

The Senate released a discussion draft of its healthcare bill. For more information, see the Prime Healthcare team’s update from earlier today. We will also have more details and reaction in tomorrow’s edition of Healthcare Today.


June 15, 2017

It’s Week 21 of the Trump presidency. There are only 23 legislative days until August Recess and 35 legislative days until government funding expires.

PRESIDENTIAL ACTION

This week, President Trump signed one Executive Order.

Expanding Apprenticeships in America (June 15)

The order requires the Secretary of Labor, with the Secretaries of Education and Commerce to consider proposing regulations that promote the development of apprenticeship programs by third parties. Additionally, the Secretary of Labor will use available funding to promote apprenticeships, while the Secretaries of Education, Labor, and Defense with the Attorney General will promote apprenticeships and pre-apprenticeships for high schoolers, Job Corps participants, and programs at institutions of higher learning. The Executive Order also establishes a Task Force on Apprenticeship Expansion that will issue a report on issues including federal initiatives to promote apprenticeships; effective strategies for creating industry-recognized apprenticeships; and reforms that would facilitate the creation of such programs. Finally, the Order calls for the creation of an Excellence in Apprenticeship program within two years, and requires the head of each agency to submit a list of programs that promote skills development and workplace readiness.

Tomorrow, during a trip to Miami, President Trump is expected to announce changes to the U.S.-Cuba relationship, which was modified significantly by then-President Obama in 2014. Preliminary reports from media outlets quote sources as saying that the “policy isn’t going to do anything new… it’s pretty weak.” Among the items expected to be announced is strict enforcement of the travel exemptions; tasking the Secretary of State with creating a task force on expanding Cuban internet access; and forbidding Americans or American companies from doing business with the Grupo de Administracion Empresarial SA (GAESA), the state-run entity that controls much of the Cuban economy. However, the announcement is not expected to include closing the U.S. embassy or reinstating the “wet foot, dry foot” policy for Cuban immigrants.

RULEMAKING PROCESS/AGENCY ACTION

Centers for Medicare & Medicaid Services

In conjunction with HHS, CMS published a Request for Information and comments from interested parties “to inform its ongoing efforts to create a more patient-centered health care system that adheres to the key principles of affordability, accessibility, quality, innovation, and empowerment.” Among the topics they are asking for comment on are ways to stabilize health insurance markets; steps to make health coverage more affordable; and activities that could inform consumers about health plans and how to make an educated choice. Comments are due July 12.

CMS published two reports examining health insurance coverage and health insurance exchanges, the Effectuated Enrollment Analysis and The Health Insurance Exchanges Trends Report.

CMS’ Chief Actuary released his report on the Estimated Financial Effect of the American Health Care Act of 2017.

Department of Agriculture

Agriculture Secretary Sonny Perdue hosted the inaugural meeting of the Interagency Task Force on Agriculture and Rural Prosperity. The Task Force was created by Executive Order and is required to issue a report with recommended actions within 180 days.

The Department is seeking nominations  to fill 13 member and 13 alternate positions for the Cotton Board from the following states: Louisiana, North Carolina, Arkansas, California, Mississippi, and Texas (representatives from importers are also needed). Terms are three years, and producer caucuses will be held between July 6 and July 20.

The Animal and Plant Health Inspection Service within USDA issued further guidance on the use of M-44 predator control devices. The guidance follows interim guidelines that were instituted in late March.

Department of Commerce

The Department is seeking public comment on the amended sugar agreements between the United States and Mexico, as well as representatives of the Mexican sugar industry. Comments should be submitted through the Enforcement and Compliance’s Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS), and are due June 26.

Department of Education

The Department announced that it intended to create rulemaking committees on the Borrower Defense to Repayment (BDR) and Gainful Employment regulations. In conjunction with the announcement, the Department will hold two public hearings (dates TBD) and accept written comments on the regulations. Additionally, the Department will delay implementation of BDR final rule that was scheduled to go into effect on July 1, stating in part that the “United States will suffer no significant harm from postponing the effectiveness of the final regulations while the litigation is pending.”

Department of the Interior

Interior Secretary Ryan Zinke announced that he had submitted the 45-day interim report on Bears Ears National Monument, as required by an April 26 Executive Order. The report recommends decreasing the size of the Monument; Congress authorizing tribal co-management in some areas; and Congress designated some areas within the existing Monument as national recreation or national conservation areas.

The Bureau of Land Management announced that it was postponing the certain compliance dates for its final Waste Prevention rule, which was issued on November 18, 2016. The Rule is currently being challenged in U.S. District Court.

Department of the Treasury

The Department of the Treasury released its first in a series of reports “examining the United States’ financial regulatory system and detailing executive actions and regulatory changes that can be immediately undertaken to provide much-needed relief.” Subsequent reports will focus on markets, liquidity, central clearing, financial products, asset management, insurance, innovation, and other topics.

  • A Financial System That Creates Economic Opportunities: Banks and Credit Unions Report

Treasury issued a request for comment, in accordance with Executive Order 13771, on its current regulations that could be eliminated, modified, or streamlined to reduce burdens. Comments are due July 31.

Treasury released a proposed rule on a new, centralized audit process for partnerships, which was required by the Bipartisan Budget Act of 2015. The regulation addresses the “scope of the centralized partnership audit regime and provide definitions and special rules that govern its application, including the designation of a partnership representative,” as well as providing procedures for electing out of the new audit regime and filing administrative requests. The rule would apply to taxable years after December 31, 2017. Comments are due August 14, and a public hearing will be held September 18.

Environmental Protection Agency

The EPA is proposing to a two-year stay for certain parts of the “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources” final rule issued on June 3, 2016. Comments are due July 17, 2017.

Federal Emergency Management Agency

FEMA is asking for public comments on existing rules, regulations, or policies that may be appropriate for repeal, replacement, or modification as a result of Executive Order 13777, “Enforcing the Regulatory Reform Agenda.” Comments are due within 60 days.

Federal Motor Carrier Safety Administration

FMCSA announced that it was extending the compliance date on its final rule on lease and interchange of passenger-carrying commercial motor vehicles due to “numerous petitions.” The rule will now go into effect on January 1, 2019. Additionally, FMCSA requested public comment on the proposed responses to the position. Comments are due within 45 days.

Office of Management and Budget

OMB Direct Mick Mulvaney issued a memorandum on Reducing Burden for Federal Agencies by Rescinding and Modifying OMB Memorandum. OMB is looking at “low-value, duplicative, and obsolete activities that can be ended” and empowering agency heads to find the best ways to reduce costs. The Memorandum says it is the first in a series of steps that OMB will take over the next year.

U.S. Consumer Product Safety Commission

The CPSC is asking for public comments on ways that the Commission could “reduce burdens and costs of its existing rules, regulations, or practices without harming consumers.” Comments are due by September 30.

LEGISLATION

Bills in both the House and Senate were introduced Friday that would overturn the Department of Labor’s fiduciary rule. Reps. Phil Roe (R-TN) and Peter Roskam (R-IL) introduced the Affordable Retirement Advice for Savers Act (H.R. 2823), and Sen. Johnny Isakson (R-GA) introduced the Affordable Retirement Advice Protection Act (S. 1321). The bills come after Rep. Roe sent a letter signed by 123 of his colleagues asking the Department of Labor to delay the Fiduciary Rule in its entirety.


June 8, 2017

It’s Week 20 of the Trump presidency. There are only 28 legislative days until August Recess and 40 legislative days until government funding expires.

As a reminder, the United States Trade Representative is seeking public comment on the NAFTA renegotiation. Comments are due June 12, and can be submitted here. If you have questions, please let us know.

PRESIDENTIAL ACTION

This week was billed by the Administration as “Infrastructure Week.” As a result, the President, Vice President and others held a series of events geared toward that subject. They also released principles for reforming the FAA and air traffic control.

RULEMAKING PROCESS/AGENCY ACTION

Centers for Medicare & Medicaid Services

CMS issued proposed revisions to arbitration agreement requirements for long-term care facilities. The revisions follow the issuance of a final rule on October 4, 2016, which was subsequently halted by preliminary injunction in November 2016. Comments are due on the revisions by August 7, 2017.

Department of Agriculture

The Department is seeking nominations for the National Organic Standards Board. Terms are five years, and submissions are due August 7.

Department of Commerce

Commerce Secretary Wilbur Ross announced a new agreement in principal to suspend antidumping and countervailing duties against Mexican sugar imports into the U.S. The suspension agreement focuses on price, U.S. needs, enforcement, purity/polarity, and the raw vs. refined split.

Department of Homeland Security

DHS Secretary John Kelly announced the release of FY2017 Notices of Funding Opportunity for 10 DHS preparedness programs. The grants will total more than $1.6 billion. If you would like additional information on individual grants, please let us know.

Department of the Interior

Interior Secretary Ryan Zinke announced that he had signed an order to “improve sage-grouse conservation and strengthen communication and collaboration between state and federal governments.” The order establishes a Sage-Grouse Review Team that will review (among other things) plans and programs that address the Sage-Grouse; examine how invasive grasses and wildland fires are threatening Sage-Grouse habitats; and provide recommendations on captive breeding, enhancing state involvement, efficacy of state-by-state population targets, and additional steps.

Department of Labor

Labor Secretary Alexander Acosta announced that he was withdrawing DOL’s 2015 and 2016 informal guidance on joint employment and independent contractors. The guidance has also been removed from the Department’s website.

Secretary Acosta announced steps to “increase protections of American workers while more aggressively confronting entities committing visa program fraud and abuse.” The Secretary directed the Wage & Hour Division to enforce labor protections provided by the visa programs; directed the Department’s Employment and Training Administration (ETA) to develop changes to the Labor Conditions Application to better identify system violations and potential fraud; and directed the ETA and the Office of the Solicitor to coordinate enforcement activities of the visa programs. Secretary Acosta also announced the creation of a working group of senior members of the Department to supervise these efforts and coordinate enforcement.

Department of Transportation
The Department announced that it was reviewing “existing policy statements, guidance documents, and regulations” to identify obstacles to transportation infrastructure projects. Comments are due July 24.

Environmental Protection Agency

EPA Administrator Scott Pruitt announced that EPA is extending the deadline for promulgating initial area designations for the 2015 ozone National Ambient Air Quality Standards (NAAQS) by one year. In a letter to governors, Pruitt said that he has established an ozone Cooperative Compliance Task Force to “develop additional flexibilities for states to comply with the ozone standard.

Federal Motor Carrier Safety Administration

The FMCSA announced that it would withdraw its November 2014 advance notice of proposed rulemaking geared toward determining if minimum insurance limits for commercial motor vehicle operators should be increased.

Food and Drug Administration

The FDA announced that it intended to extend the compliance dates for agricultural water requirements in the product safety rule. This announcement follow an earlier announcement that the FDA was looking to simplify the agricultural water standards established by the Food Safety Modernization Act.


June 1, 2017

It’s Week 19 of the Trump presidency, and Congress is enjoying its Memorial Day Recess. There are only 31 legislative days until August Recess and 43 legislative days until government funding expires.

As a reminder, the United States Trade Representative is seeking public comment on the NAFTA renegotiation. Comments are due June 12, and can be submitted here. If you have questions, please let us know.

PRESIDENTIAL ACTION

Though President Trump promised during the 2016 campaign to move the American Embassy in Israel to Jerusalem, he issued a memorandum today suspending the move for six months “in order to protect the national security interests of the United States,” as his predecessors have done. Therefore, the Embassy will remain in Tel Aviv for the time being.

Today, President Trump announced that he was withdrawing the United States from the 195-nation Paris accord that sought to address and mitigate some of the effects of climate change. The withdrawal process will take more than three years, with Article 28 of the Accords governing countries’ potential exists, so it will likely play a role in the 2020 presidential election, as well as the 2018 congressional elections (the earliest that the Trump Administration could complete the exit would be November 4, 2020- one day after the 2020 election). The president cited the cost to American workers and the economy. Though President Trump said that he would attempt to renegotiate the agreements, several leading countries issued a statement saying that the agreement could not be renegotiated.

RULEMAKING PROCESS/AGENCY ACTION

Department of Agriculture

The Department is seeking nominations for the United States Potato Board. Terms are three years, and submissions are due July 1.

USDA has invited grant applications for its program to support economic development in rural communities. The Rural Community Development Initiative (RCDA) is open to nonprofits, low-income rural communities, or federally recognized tribes. The deadline for submission is July 25, and more information can be found in the Federal Register notice.

Department of Health and Human Services

HHS announced that $70 million in grants will be available to help communities and healthcare providers to combat opioid overdoses and provide treatment for opioid addiction. The grants will be administered through the Substance Abuse and Mental Health Services Administration (SAMHSA). The announcement follows a similar announcement from April. Deadlines vary in July, and more information can be found on the SAMHSA website.

Department of the Interior

The Department of Interior announced that Secretary Ryan Zinke signed a secretarial order to allow for energy production into Alaska’s National Petroleum Reserve (NPR-A). The order calls for the Assistant Secretary for Land and Minerals Management to perform a lawful review and development of the Integrated Activity Plan for the NPR-A and to evaluate the Integrated Activity Plan to efficiently and effectively maximize land offered during the next lease sale. Additionally, within 21 days a plan will be submitted for updating current assessments of oil and natural gas in Alaska’s North Slope in the NPR-A.

Department of Transportation

The Department announced the creation of DOT’s Regulatory Reform Task Force (RRTF). Deputy Secretary Jeffrey Rosen will serve as the Department’s Regulatory Reform Officer and Chairman of the RRTF. The RRTF will review the “midnight rules” put in place by the Obama Administration and “consider ways to accomplish DOT’s primary safety objectives in less burdensome ways.”

Department of Veterans Affairs

As part of its outreach to veterans, the White House Veterans Complaint Hotline had a soft opening today, with a full launch on August 15. The Hotline is designed to “collect, process and respond to the complaints” of veterans in a timely manner. The phone number to the Hotline is (855948-2311.

Environmental Protection Agency

The EPA announced that it was delaying the effective date for the rule that addresses revisions to the Certification of Pesticide Applicators rule. The final rule, which was issued on January 4, 2017 initially had an effective date of June 5, 2017. The rule will now go into effect May 22, 2018.


May 18, 2017

It’s Week 17 of the Trump presidency. Today, the Trump Administration announced that it will renegotiate NAFTA, starting the 90-day countdown clock before U.S. negotiators are permitted to sit down with their counterparts in Mexico and Canada. In accordance to the Bipartisan Congressional Trade Priorities and Accountability Act of 2015, the Administration will use the next three months to meet with Congressional officials, including the House and Senate Advisory Groups on Negotiations before moving forward. See below for more details, including the text of the letter sent to Congress.

CONGRESSIONAL REVIEW ACT (CRA)

The President signed H.J. Res. 66 on May 16. The resolution rolls back a Department of Labor rule relating to savings arrangements created by states for non-governmental employees. The final rule was issued August 30, 2016. For more information, see the May 4th edition of Regulatory Report.

LEGISLATION

The Senate Homeland Security and Governmental Affairs Committee passed five bills focused on regulations or the regulatory process.

  • 34, The Midnight Rules Relief Act of 2017, would amend the Congressional Review Act to allow Congress to consider CRA resolutions en bloc. The bill passed out on a party-line vote, 8-6.
  • 951, the Regulatory Accountability Act of 2017, requires all federal agencies to review all regulations after ten years, as well as requires a cost-benefit analysis for major and high-impact rules. Sen. Heidi Heitkamp (D-ND) joined all the Committee’s Republican members in voting for the bill.
  • 579, the Early Participation in Regulations Act of 2017, requires agencies to publish advance notice of a proposed rulemaking for a major rule. The bill passed 11-4, with Democratic Sens. McCaskill (MO), Peters (MI), and Heitkamp (ND) joining their Republican colleagues.
  • 21, the Regulations from the Executive in Need of Scrutiny Act of 2017, passed on an 8-6 party-line vote. The bill requires that Congress approve any “major” rules by enacting an approval resolution within 70 legislative days (with a provision bypassing the requirement on an “imminent threat to health or safety.”
  • 584, the Small Business Regulatory Flexibility Improvement Act, modifies the requirements for rulemakings targeting small businesses. The bill passed on a party-line vote.

RULEMAKING PROCESS/AGENCY ACTION

Centers for Medicare and Medicaid Services

Today, CMS released their final rule “Advancing Care Coordination Through Episode Payment Models (EPMs); Cardiac Rehabilitation Incentive Payment Model; and Changes to Comprehensive Care for Joint Replacement Model (CJR),” establishing May 20 as the effective date for the rule, which was originally released January 3, 2017. The rule delays the applicability of the regulation to January 1, 2018.

Department of Commerce

Today, Commerce Secretary Wilbur Ross announced a countervailing duty (CVD) and antidumping (AD) investigation into the importation of civil aircraft from Canada.

On Tuesday, the Department announced its findings for the CVD and AD investigation into steel rebar from Japan and Turkey, determining that both countries sold the product at less than fair value. The U.S. International Trade Commission is conducting a parallel investigation to determine if American producers have been harmed. A final determination is due June 29, 2017.

Department of Health and Human Services

Today, HHS announced that it would delay the effective date for their 340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties Regulation. The final rule, published on January 5, 2017, was originally delayed until May 22. However, the regulation will now be delayed until October 1, 2017.

Department of Justice

Acting Attorney General Rod Rosenstein announced the appointment of former FBI Director Robert S. Mueller III to serve as Special Counsel to oversee the investigation into the Russian government’s efforts to interfere in the 2016 presidential election.

Attorney General Jeff Sessions announced the DOJ charging and sentencing policy. Within the directive, AG Sessions recommits the Department to prosecuting crimes that carry mandatory minimum sentences. The guidance is a departure from the Obama Administration’s policy to refrain from seeking mandatory minimum sentences for low-level nonviolent drug offenses.

Department of the Treasury

This week, the Department of the Treasury Office of Foreign Assets Control (OFAC) placed sanctions on eight Venezuelan government officials, two senior Iranian defense officials connected to Iran’s ballistic missile program, and five individuals and five entities  in response to the continued violence perpetrated by the Government of Syria.

Federal Communications Commission

The FCC announced that it was releasing a notice of proposed rulemaking that would rollback the 2015 net neutrality provisions. It would eliminate Title II utility regulations on internet service providers and return to the FCC’s original classification of mobile broadband Internet access service as a private mobile service. Commissioner Clyburn dissented from the decision.

Today, the FCC announced it was releasing a Notice of Proposed Rulemaking to eliminate the main studio rule. Th rule requires that FM, AM, or television stations have a main studio near its local community. The rule is more than 70 years old.

Today, the FCC announced it was releasing a public notice that it is reviewing its media rules.

United States Trade Representative

Today, USTR Robert Lighthizer announced the Trump Administration’s intention to renegotiate the North American Free Trade Agreement (NAFTA). Due to the 90-day clock, negotiations cannot begin until August 16, 2017.

  • Letter to Congress highlighting priorities
  • Agriculture Secretary Sonny Perdue statement

May 11, 2017

It’s Week 16 of the Trump presidency, and today marks the last day for Congress to vote on CRA resolutions for rules that were finalized during the last months of the Obama Presidency.

CONGRESSIONAL REVIEW ACT (CRA)

For the first time this week, a CRA vote failed. Yesterday, the Senate voted 49-51 against H.J. Res. 36, commonly referred to as the Methane Rule, which had passed the House on February 3. Republican Senators Lindsey Graham (SC), John McCain (AZ) and Susan Collins (R-ME) joined with all Democratic Senators to reject the repeal.

As mentioned above, today is the last day for CRA votes. Among the more high-profile repeal efforts that will not receive a vote is a CFPB rule that governed and regulated prepaid debit cards (S.J.Res. 19/H.J. Res 62/H.J.Res. 73). 

EXECUTIVE ORDERS

Since the last edition of this Report, the President has signed 2 Executive Orders.

Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure (May 11)

The order, one of the longest issued by the President so far, delves into several different aspects of cybersecurity. Within 90 days, the Secretaries of State, Treasury, Defense, and Commerce (in conjunction with the Attorney General, USTR, and DNI) will submit a report on the country’s options for deterring adversaries and protecting Americans from cyber threats; within 45 days reports will also be presented on international cybersecurity priorities, followed by additional reports within 90 days detailing an “engagement strategy” for international cooperation. Finally, several Agency heads are required to submit reports on workforce development in the cybersecurity space.

The order states that all Agency heads will be held accountable for implementing risk management measures by using NIST’s Framework for Improving Critical Infrastructure Cybersecurity, and each agency’s risk management report will be assessed by the Secretary of Homeland Security and the Director of OMB. Within 60 days of receiving reports from all agencies, the OMB Director will submit a plan to the President detailing how to protect the executive branch; establish a process for reassessing the determination; and clarifying and reconciling procedures. The order also states that the Director of the American Technology Council will issue a report within 90 days detailing the legal, policy, and budgetary considerations for modernizing federal IT. Additionally, to address cybersecurity concerns of critical infrastructure, the DHS Secretary, in coordination with several other heads of agency will submit a report within 180 days for findings and recommendations for supporting cybersecurity. Other sections in the order address supporting transparency in the marketplace; an assessment of an electricity disruption incident response; improving resilience against botnets; and the cybersecurity risks facing the defense industry.

Establishment of Presidential Advisory Commission on Election Integrity (May 11)

The order establishes the Commission, which is tasked with studying the registration and voting processes. The Commission will then submit a report to the President that details the laws, rules, and policies that enhance or undermine confidence in the electoral process, as well as the vulnerabilities in voting systems and practices that could lead to voter fraud. The Commission will be chaired by Vice President Pence and include up to 15 other members.

RULEMAKING PROCESS/AGENCY ACTION

Department of Agriculture

Today, Secretary Sonny Perdue announced the creation of an undersecretary for trade and foreign agricultural affairs within the Department, as “recognition of the ever-increasing importance of international trade to American agriculture.” In the same announcement, the Secretary also stated that the Department of Agriculture’s Rural Development agencies would be reorganized to begin reporting directly to the Secretary.

The Department announced that it was delaying two rules related to the National Organic Program (NOP); Organic Livestock and Poultry Practices. The rule published on January 19 will be delayed until May 19, 2017, and the rule published on February 9 will be delayed until November 14.

Partially in response to the president’s executive order on free speech and religious liberty, Secretary Perdue issued a policy statement and memo affirming the Department’s dedication.

 Department of Commerce

Wednesday, Secretary of Commerce Wilbur Ross announced the beginning of an antidumping and countervailing duty investigation on imports of cold-drawn mechanical tubing from six countries, including China and Germany.

 Department of Education

After President Trump intimated that a funding program for historically black colleges and universities, among other programs, may be illegal because it could violate the 5th Amendment, Secretary of Education Betsy DeVos reiterated her support for HBCUs. The Administration has since walked back some of the comments made in their signing statement

 Department of the Interior

After signing a Secretarial Order implementing President Trump’s Executive Order on offshore drilling, the Department announced it would move forward to evaluate applications from six companies to conduct geological and geophysical (G&G) activities in the Atlantic Ocean. The decision reverses an Obama Administration decision to deny the permit applications.

In response to President Trump’s executive order to review monument designations, the Department announced the list of monuments being “initially reviewed.” The list includes four that were designated in 2016 and reaches back as far as 1996 (though the Craters of the Moon monument listed was first designated in 1924, a significant expansion occurred in 2000). The review includes a 30-day comment period, in which the public is encouraged to participate

Department of Veterans Affairs

The Department announced that it was extending its review of the Program of Comprehensive Assistance for Family Caregivers by six weeks. The review was initiated on April 17 after the Department halt revocations of eligibility because of concerns of inconsistency.

Federal Emergency Management Agency

FEMA is asking for feedback on some of its National Incident Management System (NIMS) guidance documents. Among the documents up for public comment include the NIMS Guidance for the National Qualification System, the NIMS Guideline for Mutual Aid, and the NIMS Guideline for the Credentialing of Personnel. FEMA will be holding webinars to explain the documents and answer questions; the National Engagement Period will end on June 9, 2017.


May 4, 2017

It’s Week 15 of the Trump presidency. Andrew Liveris, who serves as the head of the White House Manufacturing Jobs Initiative, said in a speech to the Chamber of Commerce that the Trump Administration is looking at more than 130 regulations for reform or elimination

If, as expected, the Senate is not in session tomorrow, the deadline for CRA legislation will be May 12.

CONGRESSIONAL REVIEW ACT (CRA)

Congress this week sent one Congressional Review Act (CRA) measure to President Trump for his signature.

Savings Plans: The Senate passed H.J. Res. 66, which rolls back a Department of Labor rule relating to savings arrangements created by states for non-governmental employees. The final rule was issued August 30, 2016.

EXECUTIVE ORDERS

Since the last edition of this Report, the President has signed 5 Executive Orders.

Improving Accountability and Whistleblower Protection at the Department of Veterans Affairs (April 27)

The order requires the Secretary of Veterans Affairs to establish the Office Accountability and Whistleblower Protection within 45 days of the Order. Among other things, the Office will identify statutory barriers that prevent the Secretary from disciplining or terminating employees that have jeopardized veterans’ health or care and ensure the swift resolution of complaints of wrongdoing.

Implementing an America-First Offshore Energy Strategy (April 28)

The order states that it is the policy of the U.S. “to encourage energy exploration and production,” including in the Outer Continental Shelf. Further, the Order give the Secretary of the Interior to revise the schedule of oil and gas lease sales and develop a streamlined permitting process. The Secretary of Commerce (in consultation with the Secretaries of Interior and DHS) will review the designations of National Marine Sanctuaries and Marine National Monuments.

Establishment of Office of Trade and Manufacturing Policy (April 29)

The order establishes the Office of Trade and Manufacturing Policy within the White House. The Office will advise the president on strategies to promote trade policies; serve as a liaison between the White House and the Department of Commerce; and improve the executive branch domestic procurement and hiring.

Addressing Trade Agreement Violations and Abuses (April 29)

The Executive Order requires the Secretary of Commerce and the United States Trade Representative to conduct performance reviews of all trade agreements and trade relations government by WTO rules within 180 days of the order. The review will identify and document violations or abuses, unfair treatment, and appropriate actions. It also instructs the Agency and Department heads to take action to address trade law violations or abuses.

Establishment of the American Technology Council (May 1)

The order establishes the American Technology Council, which will coordinate strategy, direction, and advice for the federal government’s use of information technology.

Promoting Free Speech and Religious Liberty (May 4)

The order states that all executive departments and agencies will respect and protect the freedom of people and organizations to engage in religious and political speech. As such, the Department of the Treasury will not take adverse actions (like removing tax exempt status) against houses of worship that have spoken on moral or political issues from a religious perspective. It also states that the Secretaries of Treasury, Labor and HHS will take steps to all exemptions to Obamacare’s contraception mandate for religious objections.

RULEMAKING PROCESS/AGENCY ACTION

Department of Agriculture

Secretary of Agriculture Sonny Perdue announced that USDA would allow for greater flexibility in nutrition requirements for school meal programs.

 Department of Energy

Secretary of Energy Rick Perry announced that he had issued a Determination permitting DOE to continue making uranium transfers to support clean-up efforts at the Portsmouth Gaseous Diffusion Plant.

 Department of the Interior

Secretary of the Interior Ryan Zinke signed a Secretarial Order implementing President Trump’s Executive Order on offshore drilling. It directs the Bureau of Ocean Energy Management to create a five-year plan for exploration and reconsider regulations currently governing those activities. The order requires BOEM to “promptly complete” the Notice to Lessees and operators of Federal Oil and Gas, and Sulfur Leases (September 12, 2016) and “immediately cease all activities” surrounding the Offshore Air Quality Control, Reporting, and Compliance Proposed Rule. Additionally, BSEE is required to review the Oil and Gas and Sulfur Operations in the Outer Continental Shelf-Blowout Preventer Systems and Well Control final rule.

The Secretary of the Interior also signed a Secretarial Order creates a new Counselor to the Secretary for Energy Policy, which will coordinate the Department’s energy portfolio.

Federal Motor Carrier Safety Administration

The Federal Motor Carrier Safety Administration (FMCSA) issued a notice on Friday April 28 withdrawing its April 27, 2016 Advance Notice of Proposed Rulemaking (ANPRM) on state inspection programs for commercial motor vehicles designed or used to transport passengers.  FMCSA cited insufficient data as the reason for the withdrawal.  Industry objected to the proposal.

Federal Railroad Administration

FRA issued a notice that it would delay a regulation governing training requirements for railroad workers who have safety-related jobs, which was put into place in November 2014. The regulation will now go into effect June 2, 2017.

Food and Drug Administration

The FDA announced that it would extend the compliance date for menu labeling requirements until May 7, 2018 (the requirements were supposed to go into effect May 5, 2017).

LEGISLATION

Today, the House passed H.R. 1628, the American Health Care Act (AHCA) by a vote of 217-213. The AHCA would allow states to issue waivers for insurance companies for a number of the requirements under Obamacare, as well as repealing the penalties for those in noncompliance with the individual mandate. To read more about it: The House Finally Passes AHCA. What’s Actually In It and What Happens Next? or sign up to receive our weekly Healthcare Today that covers all aspects of health policy and politics.


April 27, 2017

It’s Week 14 of the Trump presidency. A vote on S.J. Res. 11, which deals with the Bureau of Land Management methane rule is expected sometime next week.

EXECUTIVE ORDERS

In the past week the President has signed four Executive Orders.

Identifying and Reducing Tax Regulatory Burdens (April 21)

The order requires the Secretary of the Treasury to review all tax regulations issued on or after January 1, 2016 and report any that impose a financial burden on taxpayers; add complexity to federal tax laws; or exceed the authority of the IRS within 150 days.

Promoting Agriculture and Rural Prosperity in America (April 25)

The order establishes the Interagency Task Force on Agriculture and Rural Prosperity, which will identify policy changes (both legislative and regulatory) that will promote rural America. Among the specific tasks that the Task Force will look at are promoting the preservation of family farms; encouraging the production and exporting of agricultural products; removing barriers to economic prosperity; and expanding educational opportunities in rural America. The Task Force will issue a report within 180 days.

Review of Designations Under the Antiquities Act (April 26)

The Executive Order states that while designation of national monuments are a means to preserve and protect America’s natural beauty, designations often lack public outreach and can create barriers to achieving energy independence and curtail economic growth. The Secretary of the Interior will conduct a review of all Presidential designations made under the Antiquities Act after January 1, 1996, where the designation is over 100,000 acres or where the Secretary determines there was not adequate public outreach or coordination. A final report is due within 120 days.

Enforcing Statutory Prohibitions on Federal Control of Education (April 26)

The order requires the Secretary of Education to review all regulations and guidance issued by the department to make sure that they comply with federal law, which prohibits the Department from exercising control or direction or curriculum, school personnel, or the selection of textbooks or instructional materials.

Additionally, President trump signed two memoranda to the Secretary of the Treasury and one to the Secretary of Commerce.

Memorandum on the Financial Stability Oversight Council (April 21)

The memo requires the Secretary of the Treasury to conduct a thorough review of the FSOC determination and designation processes for section 113 and section 804 under Dodd-Frank. The review will also evaluate whether those sections are consistent with EO 13772 (Core Principles for Regulating the United States Financial System). As the review is being conducted, the Secretary is prohibited from making any non-emergency designations. A report is due within 180 days.

Memorandum on Aluminum Imports (April 27)

Late this afternoon, President Trump signed a memo on aluminum, thought to be much the same as the one he signed last week on steel. Though the text is not available (as of this email) the memo requires the Secretary of Commerce to provide a report on aluminum imports under section 232 of the Trade Expansion Act, according to the release by the Department of Commerce.

RULEMAKING PROCESS/AGENCY ACTION

Department of Commerce

Secretary of Commerce Wilbur Ross announced a preliminary determination in the countervailing duty investigation into the importation of softwood lumber from Canada. The Department determined that Canadian exporters received subsidies of 3.02 percent to 24.12 percent.

Federal Communications Commission

FCC Chairman Ajit Pai announced his proposal to roll back Net Neutrality rules. Details of the plan can be found in the FCC Public Notice.

LEGISLATION

Senators Heidi Heitkamp (D-ND) and Rob Portman (R-OH), with Sen. Orrin Hatch (R-UT) and Sen. Joe Manchin (D-WV) serving as original cosponsors introduced a bill to alter the way that executive branch agencies and departments conduct rulemaking. The Regulatory Accountability Act would require that agencies conduct cost-benefit analyses for any proposed rulemaking. Additionally, the Act would require an automatic review process for major regulations every 10 years.


April 20, 2017

It’s Week 13 of the Trump presidency, and Congress is in recess.

EXECUTIVE ORDERS

On Tuesday, the President signed an Executive Order.

Buy American and Hire American (March 31)

The order requires all agency heads to assess their compliance with Buy American Laws; the use of waivers and their impact on jobs and manufacturing; and to develop and propose policy changes that would maximize the use of materials and products manufactured in the U.S. The EO does state that “consistent with law, through terms and conditions of Federal financial assistance awards and Federal procurements” U.S. made goods, products and materials are to be given preference. This limits its breadth and scope to Federal procurement. The order also requires the Secretaries of State, Labor, Homeland Security, and the Attorney General to issue guidance to prevent visa fraud or abuse that would negatively impact U.S. workers, as well as suggesting reforms to the H-1B visa programs.

Additionally, President trump signed a memorandum for the Secretary of Commerce.

Steel Imports and Threats to National Security (April 20)

The memo says that Commerce Secretary Wilbur Ross has initiated an investigation under Section 232 of the Trade Expansion Act to determine the effects on national security of steel imports. At the conclusion of the investigation, Secretary Ross will provide a report to the President; if he should find that the imports impair national security, the Secretary will provide recommendations on actions that should be taken.

RULEMAKING PROCESS/AGENCY ACTION

Center for Medicare & Medicaid Services

April 13, CMS issued a final rule aimed at helping “stabilize the individual and small group markets and affirm the traditional role of State regulators”. Among other things, the final rule adjusts the 2018 open enrollment period and allows issuers actuarial value flexibility.

  • Final rule announcement
  • Guidance to States on review of Qualified Health Plan Certification Standards in Federally-facilitated Marketplaces for Plan Years 2018 and Later

CMS issued a proposed rule on April 14 that would “update 2018 Medicare payment and policies when patients are admitted into hospitals.”

Consumer Financial Protection Bureau

Today, the CFPB released a final rule that will delay the effective date of the rule governing prepaid accounts by 90 days. The rule will now go into effect on April 1, 2018. The CFPB says that in response to the comment period delay, the CFPB will also revisit two issues governed by the rule: the linking of credit cards to digital wallets that are capable of storing funds and error resolution and limitations on liability for prepaid accounts.

Department of Energy

Energy Secretary Rick Perry directed the Department’s Chief of Staff to initiate a 60-day study “to explore critical issues central to protecting the long-term reliability of the electric grid”. An implementation plan was due to the Secretary on Wednesday. The study will look at the evolution of wholesale electricity markets; whether wholesale energy and capacity markets are adequately compensating attributes that strengthen grid resilience; and the extent to which regulatory burdens and tax policy are responsibly for forcing premature plant retirements. Secretary Perry cited discussions at the recent G7 Energy Ministerial about the need for greater energy efficiency and fuel diversity as the reason for commissioning the study.

Department of the Interior

Interior Secretary Ryan Zinke directed the Bureau of Land Management “to immediately begin a focused effort to identify and implement results-oriented improvements to its land use planning and NEPA processes.” The Secretary drew a connection between his directive at H.J. Res 44, the “BLM Planning 2.0 rule”, which was signed into law by President Trump on March 27. Secretary Zinke says that the new, transparent system must take less time, cost less money, and be more responsive to local needs.

Environmental Protection Agency

EPA Administrator Scott Pruitt announced that the Agency will reconsider the methane emissions final rule. Citing questions about the “fugitive emissions monitoring requirements”, the EPA has issued a 90-day administrative stay on the June 3 compliance date.

Federal Communications Commission

Today, the FCC voted 2-1 to reinstate the so-called UHF discount, which was eliminated in August 2016. The Commission says the decision is only until it “can address its national television ownership rule more holistically” later in 2017. The rule allows broadcasting companies to acquire UHF stations without going over the legal limits on media ownership.

  • FCC announcement
  • Letter from House Minority Leader Nancy Pelosi and Energy and Commerce Ranking Member Frank Pallone urging the FCC to vote against reinstatement

CONGRESSIONAL REVIEW ACT (CRA)

Today, the Center for Biological Diversity filed suit in the U.S. District Court in Anchorage, Alaska challenging the Constitutionality of the Congressional Review Act. The lawsuit alleges that the CRA violates the Constitution’s separation of powers by prohibiting future rulemakings “in substantially the same form”. The group specifically sued H.J. Res. 69, which overturned a Fish and Wildlife Service rule that hunters to kill hibernating bears and wolves in Alaskan wildlife refuges.


April 13, 2017

It’s Week 12 of the Trump presidency, and Congress is in recess. It was a relatively slow week on the regulation front.

RULEMAKING PROCESS/AGENCY ACTION

Office of Management and Budget

OMB released a memorandum to all Agencies and Departments on how it will implement President’s Trump’s March 13, 2017 executive order on reorganizing the Executive Branch. All Agencies are required to submit an Agency Reform Plan, progress reports on near-term workforce reduction actions, and a plan to maximize employee performance to OMB by June 30. The memorandum also lifted the government-wide hiring freeze and said that in its place “agencies should adhere to the principles, requirements, and actions laid out in this memorandum to inform workforce planning and personnel actions.”

 Department of Justice

Attorney General Jeff Sessions announced the Department’s “Renewed Commitment to Criminal Immigration Enforcement” during a speech to Customs and Border Protection personnel. The memo directs prosecutors to focus on prosecuting offenses that can help prevent and deter illegal immigration. He also announced that DOJ will add 50 immigration judges this year and 75 next year.

Department of Labor

The Occupational Safety and Health Administration announced that it would delay enforcement of the crystalline silica standard that applies to the construction industry. Enforcement was scheduled to begin June 23, 2017 but will be pushed to September 23, 2017.


April 6, 2017

It’s Week 11 of the Trump presidency, and Congress is concluding a six-week work period before adjourning for two weeks of recess.

CONGRESSIONAL REVIEW ACT (CRA)

Since the last version of this report, Congress sent one Congressional Review Act (CRA) measures to President Trump for his signature. Additionally, the President signed two previously passed CRA resolutions.

Allowing States to Block Planned Parenthood (and other providers) from Title X funding: The Senate passed H.J. Res. 43, which rolls back a Department of Health and Human Services rule, finalized December 19 that prevented states that receive Title X Project Grants for Family Planning Services from prohibiting certain entities from receiving funding. The CRA is in response to states who would like to block providers who perform abortion services from receiving the funding.

  • Catherine Cortez Masto (D-NV), Patty Murray (D-WA), and Richard Blumenthal (D-CT) joint statement
  • Diane Black (R-TN) statement

CRA Disapproval Resolutions Signed into Law:

For more in-depth information on these measures see archived versions of the Regulatory Report.

S.J. Res. 34, which eliminates an FCC rule making it more difficult for internet service providers to sell customers’ information, including their browsing history, without first receiving consent.

H.J. Res. 42, which rolls back a Department of Labor rule that limits the groups of people who can be drug tested before receiving unemployment benefits.

EXECUTIVE ORDERS

In the last week, President Trump signed three executive orders:

The Omnibus Report on Significant Trade Deficits (March 31)

The Executive Order instructs the Secretary of Commerce and the United States Trade Representative (whose confirmation by the Senate was postponed until after the April recess) to “prepare and submit… an Omnibus Report on Significant Trade Deficits” report, which should “assess the effects of the trade relationship” on U.S. production strength and capacity and employment and wage growth. Additionally, the report is tasked with assessing the major caucuses of the trade deficit; if U.S. trading partners are imposing unequal burdens; and identifying imports and trading practices that are impairing U.S. national security.

 Establishing Enhanced Collection and Enforcement of Antidumping and Countervailing Duties and Violations of Trade and Customs Laws (March 31)

The Executive Order seeks to improve the way that the U.S. imposes penalties on countries that are “dumping” products in the U.S. It instructs the Secretary of Homeland Security (through the Commissioner of U.S. Customs and Border Protection) to develop and implement a strategy to combat “violations of United States trade and customs law”. Additionally, the Secretary of the Treasury and DHS Secretary are instructed to “take all appropriate steps, including rulemaking” to ensure the enforcement of intellectual property rights holders against imported counterfeit goods.

Providing an Order of Succession Within the Department of Justice (March 31)

The Executive Order revokes President Trump’s February 9 EO on DOJ succession and clarifies that the line of succession, after the Attorney General, Deputy Attorney General and Associate Attorney General will be: United States Attorney for the Eastern District of Virginia; United States Attorney for the Eastern District of North Carolina; and United States Attorney for the Northern District of Texas.

RULEMAKING PROCESS/AGENCY ACTION

H-1B Visa Enforcement

Several Departments and Agencies announced a renewed commitment to combat H-1B visa fraud.

Department of Interior

The Department announced that it would propose repealing the Consolidated Federal Oil & Gas and Federal & Indian Coal Valuation Reform Rule, which was finalized on July 1, 2016.

Department of Justice

Attorney General Sessions, in a memo entitled “Supporting Federal, State, Local and Tribal Law Enforcement” laid out the Department’s priorities toward its law enforcement partners, stating that it “[understood] the crucial role interagency partnerships play in successful crime prevention strategies.” Additionally, the memo instructed the Attorney General and Deputy Attorney General to review all Department activities, including reform agreements with troubled police forces.

Department of Labor

The Department announced a 60-day extension of the applicability of the final fiduciary rule, which was published April 8, 2016. The effective date for the rule will now be June 9, 2017.


March 30, 2017

It’s Week 10 of the Trump presidency and the regulatory overhaul being pursued by Congress and the administration is ongoing. It was, once again, a busy week on the regulatory front.

CONGRESSIONAL REVIEW ACT (CRA)

Congress this week sent two Congressional Review Act (CRA) measures to President Trump for his signature.

State-Based Retirement Plans for Private Sector: The Senate passed H.J. Res. 67, which rolls back a Department of Labor rule that was finalized December 20. The rule allowed states to design and operate payroll deduction savings programs for private-sector employees.

Selling Consumer Data: The House passed the controversial S.J. 34, which eliminates a Federal Communications Commission rule finalized December 2, on a 215-205 vote. The rule made it more difficult for internet service providers to sell customers’ information, including their browsing history, without first receiving consent.

CRA Disapproval Resolutions Signed into Law:

For more in-depth information on these measures see archived versions of the Regulatory Report

H.J. Res. 37, which would rescind an Obama Administration rule that sought to change the Federal Acquisition Regulation requiring prospective federal contractors to disclose their labor violations.

H.J. Res. 44, which would disapprove a Bureau of Land Management (BLM) rule on land-use planning processes.

H.J. Res. 57, which disapproves a Department of Education rule from November 29 that relates to states’ accountability plans governed under the Every Student Succeeds Act.

H.J. Res. 58, which would overturn the Department of Education rule that requires states to use specific performance indicators to measure the effectiveness of teacher preparation programs.

EXECUTIVE ORDERS

In the last week, President Trump signed three executive orders:

Revocation of Federal Contracting Executive Orders (March 27)

The EO withdraws all or part of three Obama-era Executive Orders governing federal contractors: Executive Order 13673; section 3 of Executive Order 13683; and Executive Order 13738. Essentially, the new EO rolls back the requirement for federal contractors bidding on contracts worth more than $500,000 to disclose labor law violations.

 Promoting Energy Independence and Economic Growth (March 28)

Among other actions, the EO withdrew a number of Obama-era Executive Actions on climate change. Most significantly the Executive Order instructed the Environmental Protection Agency to review, and if necessary and appropriate, “suspend, revise, or rescind” the previous administration’s Clean Power Plan.

Establishing the President’s Commission on Combating Drug Addiction and the Opioid Crisis (March 29)

The Executive Action creates the President’s Commission on Combating Drug Addiction and the Opioid Crisis, which will be chaired by New Jersey Governor Chris Christie (R-NJ). The Commission is tasked with studying current federal policy and funding, identifying best practices, and making recommendations for improving the “federal response to drug addiction and the opioid crisis”.

RULEMAKING PROCESS/AGENCY ACTION

 Department of the Interior: Interior Secretary Ryan Zinke signed two orders to “advance energy independence.

  • Secretarial Order 3348 overturns the moratorium on new coal leases on federal land, as well as ending the “programmatic environmental impacts statement”, which was expected to be completed no earlier than 2019.
  • Secretarial Order 3349 implements the President’s Executive Order on energy independence and orders a reexamination of the Department’s climate change policies and guidance

COURTS

The Trump Administration’s second-generation travel ban, which had been temporarily blocked by a federal judge in Hawaii, saw the block extended. Though DOJ lawyers had asked for the order to be dismissed or narrowed, the judge instead turned the order into a preliminary injunction. The Trump Administration must now appeal to the 9th U.S. Circuit Court of Appeals.


March 23, 2017

It’s Week 9 of the Trump presidency and the regulatory overhaul being pursued by Congress and the administration is ongoing.

CONGRESSIONAL REVIEW ACT (CRA)

Congress this week sent two Congressional Review Act (CRA) measures to President Trump for his signature.

Hunting in Alaska: The Senate passed H.J. Res. 69, which rolls back a Department of Interior rule, released August 5 that limited some hunting practices on federal wildlife refuges in Alaska. It should be noted that the CRA repeal only extends to the regulation by the Fish and Wildlife Service, as a similar regulation issued by the National Park Service fell outside the scope of CRA.

Hunting in Alaska: The Senate passed H.J. Res. 83, which rolls back an Occupational Safety and Health Administration rule that was finalized December 19.  The OSHA rule was billed as a “clarification rule” that employers have an obligation to maintain record of employees’ work-related injuries and illnesses for five years. The rule was a direct response to the Volks Constructors vs. Secretary of Labor decision from 2012.

Additionally, the Senate passed one CRA bill that will now head to the House of Representatives:

Selling Consumer Data: The Senate passed S.J. 34, which eliminates a Federal Communications Commission rule finalized December 2. The rule made it more difficult for internet service providers to sell customers’ information, including their browsing history, without first receiving consent.

RULEMAKING PROCESS

Carrier Safety Fitness Determination: Wednesday, the Federal Motor Carrier Safety Administration withdrew its January 21, 2016 notice of proposed rulemaking regarding a revised methodology for safety fitness determination for motor carriers.

March 16, 2017

It’s Week 8 of the Trump presidency and the regulatory overhaul being pursued by Congress and the administration is still going strong. The past week has seen the president issue a sweeping Executive Order on reorganizing governmental functions and a directive to reopen the Obama Administration’s 2025 fuel-economy standards for cars and light trucks. Congress, for its part, passed another Congressional Review Act (CRA) disapproval resolution by party-line votes and debated several measures that seek to alter the regulatory process.

In other news, two federal courts have halted President Trump’s revised “travel ban” Executive Order.  The president, speaking at a rally in Tennessee Wednesday night, pledged to appeal the federal rulings and would take the case “as far as it needs to go.”

CONGRESSIONAL REVIEW ACT (CRA)

Congress this week sent two Congressional Review Act (CRA) measures to President Trump for his signature, and we expect other CRA resolutions to move through the legislative process in the weeks ahead.

Drug Testing for Unemployment Benefits: The Senate passed H.J. Res. 42, which rolls back a Department of Labor rule, released August 1, that limits the groups of people who can be drug tested before receiving unemployment benefits. A 2012 law, The Middle Class Tax Relief and Job Creation Act, already restricts drug testing for beneficiaries to those who were previously fired for drug use or work in jobs that regularly tests its workers.

School Accountability: The Senate passed H.J. Res. 57, which disapproves a Department of Education rule from November 29 that relates to states’ accountability plans governed under the Every Student Succeeds Act. The final rule governs a wide-ranging set of issues including opt-outs for testing to transparency requirements to accountability measures.

 EXECUTIVE ORDERS

In the last week, President Trump signed one executive order.

Comprehensive Plan for Reorganizing the Executive Branch (March 13)

The EO has the stated purpose of improving the “efficiency, effectiveness, and accountability” of the Executive Branch by instructing the OMB Director to propose a plan within 180 days to reorganize and eliminate unnecessary agencies. The Director is also instructed to publish a notice in the Federal Register to allow the public to comment and make suggestions.

Travel Ban: Once again, the President’s travel ban was blocked by court order, though this time the injunction occurred before the ban was to go into effect at 12:01am on March 16. A federal judge in Hawaii found that the plaintiffs seeking to stop the ban were likely to succeed in their claim that the EO violates the Establishment Clause, saying specifically that the “stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims”. A federal judge in Maryland also halted the ban, by issuing a preliminary injunction.

RULEMAKING PROCESS

ESSA Implementation: The Department of Education released a new template for implementing the Every Student Succeeds Act (ESSA). The new guidance requires State Education Agencies (SEAs) to submit a consolidated state plan or individual program states plans by either April 3, 2017 or September 18, 2017.

Fracking: The Department of the Interior indicated that it will rewrite the 2015 Bureau of Labor Management’s rule on hydraulic fracturing on public lands. In a motion filed by the Department of Justice to the 10th Circuit Court of Appeals, the Trump Administration said the current rule “does not reflect” the “policies and priorities of the new Administration” and cited President Trump’s January 30th EO on Reducing Regulation and Controlling Regulatory Costs.

 Auto Emissions: During a visit to Detroit, President Trump announced that the EPA and NHTSA will revisit the Midterm Evaluation of the CAFE and GHG standards for the automotive industry. In January, the Obama EPA signed off on vehicle standards for 2022-2025.


March 9, 2017

While much of Washington’s attention this week is focused on the House GOP’s rollout of plans to repeal and replace the Affordable Care Act (and certain tweets originating from 1600 Penn), Congress and the administration continued to advance their regulatory agenda.

In the most notable development, President Trump on Monday issued a revised “travel ban” executive order that seeks to overcome legal challenges posed to the president’s original order of January 27. In a move to avoid the confusion generated by the original order, the revised ban will be phased in over a period of two weeks. The president is considering – but has yet to act on – additional executive actions on high-profile issues, including on the Obama Administration’s Clean Power Plan.

CONGRESSIONAL REVIEW ACT (CRA)

Congress this week sent three Congressional Review Act (CRA) measures to President Trump for his signature, and we expect other CRA resolutions to move through the legislative process in the weeks ahead.

Federal Contractors: The Senate passed H.J. Res. 37, which would rescind an Obama Administration rule that sought to change the Federal Acquisition Regulation requiring prospective federal contractors to disclose their labor violations. Under the final rule, a prospective contractor would be required to divulge whether it has violated a host of federal labor laws. The Obama Administration suggested the rule would protect workers and assist agencies award contracts to responsible companies. The House passed H.J. Res. 37 on February 2; President Trump is expected to sign the measure.

BLM Planning 2.0: The Senate passed H.J. Res. 44, which would disapprove a Bureau of Land Management (BLM) rule on land-use planning processes. The final rule, dubbed Planning 2.0 by BLM, seeks to enhance the role of public input during BLM’s assessments of land use plans for federal lands and shifts to Washington from BLM field offices the responsibility of drafting land use plans. The House passed the measure on February 7; President Trump is expected to sign the resolution.

Teacher Preparation: The Senate passed H.J. Res. 58, which would overturn the Department of Education rule that requires states to use specific performance indicators to measure the effectiveness of teacher preparation programs. The Obama Administration rule limits eligibility for federal grants to students in programs deemed effective, and require states to provide technical assistance to under-performing programs. The House passed the resolution on February 7; President Trump is expected to sign it.

 EXECUTIVE ORDERS

In the last week, President Trump signed one executive orders: a revised version of the “travel ban”.

Protecting The Nation From Foreign Terrorist Entry Into The United States (March 6)

Among other actions, the EO suspends visas from six countries (Iraq is the only country included in the original EO that is now excluded) for 90 days; suspends the U.S. Refugee Admissions Program for 120 days; and lowers the cap of refugees to 50,000 for the current fiscal year. Notably, the ban will not take effect until March 16.

However, a group of states is headed back to court to block portions of the executive order.

RULEMAKING PROCESS

The Department of Transportation announced late March 2 that it was suspending the public comment process on the Transparency of Airline Ancillary Service Fees rulemaking, which would have required airlines to disclose fees, such as those implemented on baggage. DOT is also delaying implementation of a regulation requiring airlines report on mishandling baggage, wheelchairs, and scooters.

The Department of Education delayed enforcement of the gainful employment, which was aimed at for-profit colleges that leave students with significant debt obligations but few job prospects. Enforcement will now not begin until July 1, 2017.


March 2, 2017

Once again, it was a busy week for both Congress and the Administration on the regulatory front.

While the Administration was expected to release a revamped “travel ban” executive order on Wednesday, reports indicate that it was postponed so as not to step on the positive news cycle that came from President Trump’s first address to a joint Congress on Tuesday. Therefore, it is likely that a new EO will come next week.

Additionally, President Trump is expected to release an executive order directing the Environmental Protection Agency to end a federal moratorium on new coal leases on federal lands, as well as to redo the Clean Power Plan.

CONGRESSIONAL REVIEW ACT (CRA)

In the last week, the House has passed one Resolution of Disapproval under the CRA:

  • J. Res 83, a Department of Labor rule relating to clarification of employers continuing obligation to make and maintain an accurate record of each recordable injury and illness

 The Senate passed H.J. Res 37, disapproving of a rule relating to the Federal Acquisition Regulation and requiring prospective contractors to disclose their labor violations, on a vote of 51-46. The Resolution now goes to President Trump for his signature.

 CRA Disapproval Resolution Signed into Law:

H.J. Res. 40- Disapproving the rule submitted by the Social Security Administration relating to Implementation of the NICS Improvement Amendments Act of 2007

LEGISLATION

This week, the House voted on three pieces of legislation that will affect the regulatory process. House Rules Committee Chairman Pete Sessions released a statement on the following actions:

H.R. 998, the SCRUB Act, introduced by Rep. Jason Smith (R-MO). The legislation establishes a BRAC-style commission to review existing federal regulations to identify those that should be eliminated. The vote was mostly party-line vote 240-185, although 11 Democrats voted “aye” and 5 Republicans voted “no”.

H.R. 1004,the Regulatory Integrity Act of 2017, introduced by Rep. Tim Walberg (R-MI). The legislation requires agencies to post all communications they issue during the rulemaking process.  The vote was mostly party-line vote 240-185, although 15 Democrats voted “aye” and 1 Republican voted “no”.

H.R. 1009, the OIRA Insight, Reform, and Accountability Act, introduced by Rep. Paul Mitchell (R-MI). The legislation would place OIRA under congressional oversight; require a written report on proposed regulations; and require a retrospective review of regulations to eliminate those that are outdated. The vote was mostly party-line vote 241-184, although 7 Democrats voted for passage.

EXECUTIVE ORDERS

In the last week, President Trump signed three executive orders:

Enforcing the Regulatory Reform Agenda (Feb. 24)

Among other things, the EO calls for each agency to designate a Regulatory Reform Officer (RRO) and establish a Regulatory Reform Task Force, which will “evaluate existing regulations… [and] make recommendations… regarding their repeal, replacement, or modification.”

The White House Initiative to Promote Excellence and Innovation at Historically Black Colleges and Universities (Feb. 28)

The order transfers the federal initiative on HBCUs from the Department of Education into the White House and establishes a President’s Board of Advisors on HBCUs.

Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule (Feb. 28)

The order requires the Environmental Protection Agency and the Army Corps of Engineers to formally reconsider the Waters of the United States (WOTUS) rule.


February 23, 2017

President Trump and the Republicans in Congress are making regulatory relief a large priority as we have seen by the many Executive Orders starting on Inauguration Day.  Congress too has been busy on a regulatory agenda that includes both resolutions of disapproval of regulations under the processed dictated by the Congressional Review Act as well as bills aimed at improving the regulatory process.

While a broad interpretation of the Congressional Review Act (CRA) might suggest Congress and the President can roll back years of regulatory activity, we are hearing that House and Senate Leadership are looking at a more finite universe of regulations for repeal under the CRA.  That makes a lot of sense both from the standpoint of managing the calendar in the Senate and mitigating any potential legal challenges.

LEGISLATION

Next week, the House Rules Committee is expected to meet to consider three pieces of legislation that will affect the regulatory process:

  • R. 998, the SCRUB Act, introduced by Rep. Jason Smith (R-MO). The legislation establishes a BRAC-style commission to review existing federal regulations to identify those that should be eliminated.
  • R. 1004,the Regulatory Integrity Act of 2017, introduced by Rep. Tim Walberg (R-MI). The legislation requires agencies to post all communications they issue during the rulemaking process.
  • R. 1009, the OIRA Insight, Reform, and Accountability Act, introduced by Rep. Paul Mitchell (R-MI). The legislation would place OIRA under congressional oversight; require a written report on proposed regulations; and require a retrospective review of regulations to eliminate those that are outdated.

EXECUTIVE ORDERS

This week, the Department of Homeland Security took steps to answer questions about how it will implement the President’s executive orders, issued January 25, on immigration and border security. Further, after President Trump called the removal of undocumented immigrants, a “military operation,” Secretary of Homeland Security John Kelly clarified in a joint press conference with Mexican officials during his trip to the country that there would be “no use of military force for immigration operations.”

Executive Order: Border Security and Immigration Enforcement Improvements (Jan. 25)

Executive Order: Enhancing Public Safety in the Interior of the United States (Jan. 25)

COURTS

Although the Trump Administration had previously promised to release a new, updated “travel ban” Executive Order this week, that action has been pushed to next week.

The Trump Administration followed through with their plan to withdraw guidance from the Obama Administration that protected transgender students under Title IX. The change in guidance could have limited impact if, as planned, the Supreme Court hears Gloucester County School Board v. G.G., which involves a transgender student in Virginia who identifies as male and wants the right to use the men’s restroom at his high school.

The Department of Justice withdrew Obama-era guidance to phase-out private contractors to federal prisons.

 


February 16, 2017

Congress heads into the President’s Day recess having successfully deployed the Congressional Review Act against a series of Obama administration regulatory actions, with the President signing the first repeal into law this week.  The White House remained busy with executive orders in the last week, issuing four, of which only one – on Justice Department succession – directly reversed a prior Obama action.  Meanwhile, the White House is debating its next legal moves in terms of the President’s travel restrictions on seven countries, with the President stating during his news conference today that a new order would be issued next week “tailored” to address the concerns of the Ninth Circuit’s ruling.  Legislative action will abate with next week’s Congressional recess but speculation remains high for possible executive orders on cybersecurity and H-1B visas.

CONGRESSIONAL REVIEW ACT (CRA)

In the last week, the House passed three Resolutions of Disapproval under the CRA:

  • J. Res 42, a Department of Labor rule relating to drug testing of unemployment compensation applicants;
  • J. Res 43, a Department of Health and Human Services rule relating to compliance with title X requirements by project recipients in selecting subrecipients
  • J. Res 66, a Department of Labor rule relating to savings arrangements established by State non-governmental employees; and,
  • J. Res 67, a Department of Labor rule relating to savings arrangements established by qualified State political subdivisions for non-governmental employees.
  • J. Res 69, a Department of Interior rule relating to Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska

The Senate passed H.J. Res 40, a Social Security Administration rule relating to the implementation of the NICS Improvement Amendments Act of 2007, on a vote of 57-43. The Resolution now goes to President Trump for his signature.

CRA Disapproval Resolutions Signed into Law:

H.J. Res. 38- Disapproving the rule submitted by the Department of the Interior known as the Stream Protection Rule

H.J.Res.41 – Providing for congressional disapproval under chapter 8 of title 5, United States Code, of a rule submitted by the Securities and Exchange Commission relating to “Disclosure of Payments by Resource Extraction Issuers

EXECUTIVE ORDERS

On February 9, President Trump signed four executive orders, three dealing with law enforcement and one on the succession of the Department of Justice.

Providing an Order of Succession Within the Department of Justice (Feb. 9)

The order puts the U.S. attorney for the Eastern District of Virginia as first in line, followed by the U.S. attorney for the Northern District of Illinois and the U.S. attorney for the Western District of Missouri.

Enforcing Federal Law with Respect to Transnational Criminal Organizations and Preventing International Trafficking (February 9)

The order lays out how the Trump Administration will address organized crime, such as gangs and cartels, and states that the activities of these groups presents “a threat to public safety and national security.”

Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers

The order instructs the Department of Justice to determine if existing federal law protects law enforcement officers sufficiently, and instructs the Department to increase the penalties for crimes committed against them to “enhance [their] protection and safety.”

Task Force on Crime Reduction and Public Safety

The order instructs the Attorney General to create a task force to propose legislation that would “reduce crime”, focusing on “illegal immigration, drug trafficking, and violent crime.”

COURTS

After the Ninth U.S. Circuit Court of Appeals unanimously upheld the suspension of the Executive Order “travel ban”, the U.S. Department of Justice is continuing its internal debate about how to proceed, which the merits of the ban continue to work through the court system.

The Justice Department announced that it was withdrawing a request for the U.S. Court of Appeals for the Fifth Circuit to limit a lower court’s injunction blocking the Obama Administration’s guidance that existing federal civil rights laws include anti-transgender discrimination because it is a type of sex discrimination.


Republican opposition to eight years of Obama-era regulatory policy has built up like water behind a dam. The challenge – and the opportunity – now facing opponents of the accumulated regulatory regime is figuring out the best channels to use to repeal the individual pieces. With this document, Prime Policy Group will initiate a series of reports on executive and legislative regulatory actions – what happened over the past week and what to expect in the week ahead.

We’ll approach this reporting by dividing regulatory actions into six possible avenues:

CONGRESSIONAL REVIEW ACT

One is action pursuant to the Congressional Review Act (CRA). The CRA provides for expedited consideration of Congressional legislation to repeal regulations that were finalized within 60 legislative days of introduction. The advantages of pursuing repeal through the CRA is that it is an expedited, time-limited process and Senate passage can be achieved by a simple majority. There are a number of limitations on the CRA, including its application to rules that were finalized within the last 60 legislative days, meaning the clock is ticking and will soon expire on that class of Obama Administration rules. With the CRA, an entire rule must be repealed – not select provisions – and the process may only be used on one rule at a time, not on a group of regulations that might result from a single piece of sweeping legislation such as Dodd/Frank. As of this writing, Congress has already successfully deployed the CRA on a handful of items and lots more will come. One challenge will be prioritizing which regulations to repeal in the limited window that exists, especially with the Senate’s demands on floor time.

Pros Cons
Only requires a simple majority Limited applicability
Expedited process Entire rule must be repealed, not specific provisions within a rule
  CRA can only be used on one rule at a time, can’t be done in batches

EXECUTIVE ORDERS

President Trump has already employed the power of the pen to direct executive agency actions in a number of controversial areas, including immigration enforcement. The principal advantages of executive orders are that they can be enforced immediately and they do not require Congressional action or approval.  The main disadvantage is their temporal nature – they apply only as long as the President who signed them is in office.

Pros Cons
Immediate Temporal – last only for the duration of an Administration.
Does not require congressional action  

APPROPRIATIONS LEGISLATION

The annual appropriations process has long been a favored vehicle for congressional attempts to restrain executive actions through use of “riders” that limit expenditures of funds for particular purposes or limit enforcement of certain statutory provisions. Appropriations bills are favored because they are must-pass items and, given the scope and scale of recent omnibus measures covering multiple agencies, individual riders can avoid specific focus and opponents made to accept them as part of negotiated bargains. But restrictions enacted by appropriations bills apply only for the length of the fiscal year that is covered by those bills. They also require a Senate supermajority, which can be a high hurdle, and a rider that is a bargaining chip can be removed as easily as it can be inserted in the interest of getting the needed Senate supermajority or House majority.

Pros Cons
Must pass for government to continue to function Must be renewed each year
Provision you are inserting can be used as bargaining chip Requires supermajority vote (60 votes)
  Provision you are inserting can be used as bargaining chip

AUTHORIZATION LEGISLATION

The most impactful means of overturning previously enacted regulations is through the old-fashioned authorization process. Authorization bills create permanent statutes. They are passed through regular-order and, therefore, must achieve a Senate supermajority. But not all authorization bills are created equal. Some, like the Department of Defense or Federal Aviation Administration reauthorization measures, are considered must-pass vehicles either because of the gravity of their subject matter or because the continued operation of the agency is critical to certain activities such as the air traffic system.

Pros Cons
Permanent statute Supermajority requirement

COURTS

Congressional Republicans and other opponents of Obama-era regulations and executive orders have already pursued legal actions in a number of cases. For example, a Labor Department regulation regarding overtime was challenged and an injunction placed on further enforcement by a Federal judge in Texas in November 2016.  Legal remedies provide multiple points of entry to seek redress and plaintiffs with a national footprint have sought the most ideologically-friendly venues, often to great success. The downside of legal action is the length of the process and the uncertainty of the outcome. When fewer options were available during the Obama Administration, with the Presidential veto and a divided Congress, legal action was often the best and only option. With unified Republican control, there are a plethora of other options to repeal Obama regulations. In fact, the courts are starting to get busy with Democratic and progressive challenges to President Trump’s executive orders. The worm has turned.

Pros Cons
Multiple entry points Lengthy
  Uncertainty of result

RULEMAKING PROCESS

In some cases, the Trump Administration will not seek to repeal a rule; they’ll pull a rule back and re-issue it according to their own parameters. That has happened already with the President’s executive action on the Dodd Frank fiduciary rule. Rulemaking resides within the executive branch, so no Congressional action is needed. The downside is the lengthy process required to pull a rule back and re-promulgate it, especially in light of the President’s recent action requiring two regulations to be repealed for every one that is promulgated.

Pros Cons
Does not require congressional action Lengthy
  ‘One-in, two-out’ executive order

Paul Brown

Paul has 20-plus years of public affairs experience and works with a wide range of Prime Policy Group’s clients, including those in the telecommunications, energy, local government, and travel & tourism sectors. Among other things, Paul helps guide clients through the complex world of the U.S. Senate, using knowledge of Senate procedure and a wide range of policy issues gained from his work in Senate Democratic leadership. He also helps coordinate Prime’s integration efforts with other WPP and Burson Marsteller companies, and serves as treasurer of the firm’s political action committee.

 

Pam Turner

Pam has more than thirty years of experience in corporate government relations, political and legislative arenas. She is recognized as a leading political strategist, and has held senior positions in several Republican Administrations and the US Congress. She has participated in Presidential campaigns as well as the transition process following Presidential elections. Pam helps to lead Prime Policy Group’s defense and homeland security practice, as well as focusing on issues involving technology, telecommunications, and cybersecurity.