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Regulatory Report


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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 It states that 469 actions have been withdrawn that were proposed in the second half of 2016.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.