REGULATORY ACTIVITY UPDATE
After years of reporting on the aggressive anti-business regulatory agenda coming out of
Washington, D.C., we are happy to be reporting on the roll-back of regulations that has been
undertaken by Congress and the Trump Administration, and what remains to be done.
Congressional action:
Both Houses of Congress have been systematically tackling the regulatory burden by repealing
targeted Executive Branch regulations using a rarely-used but powerful tool, the Congressional
Review Act (CRA). Under the CRA, Congress can pass legislation to repeal a specific
regulation with an expedited floor procedure – in order words, with a time limit on debate and
not subject to a Senate filibuster so it can pass with a simple majority vote. A CRA resolution
must be introduced within 60 legislative days in the House/60 session days in the Senate (not
calendar days) of Congress being notified of a new regulation, and a successfully-passed CRA
resolution must be signed by the president or his/her veto overridden.
The CRA has only been successfully used once before, in early 2001 when a GOP-led Congress
repealed an onerous ergonomics rule put into place in late 2000 by President Clinton’s Labor
Department. President Clinton or another Democrat president would obviously have vetoed that
CRA, but a newly-elected President George W. Bush signed it into law.
We have the same circumstance today – regulations promulgated late in the term of a
Democratic President that a GOP-led Congress can repeal and a newly-elected Republican
president will sign into law.
While the expedited procedures allow a CRA to pass with a simple majority vote, the statute
provides for up to 10 hours of debate on each CRA and only one regulation at a time can be
repealed. Given the amount of “floor time” that the Senate has to commit to consideration of
President Trump’s nominees, it has been a challenge for the Senate to find enough time to meet
all the demands for their action.
Despite the obstacles, Congress has moved decisively and has passed two CRA resolutions of
disapproval on significant regulations, with three additional measures in the immediate pipeline
and more to come. Of particular interest is the Labor Department’s “Blacklisting Rule” that
would require Federal contractors to disclose to the procuring agency any “administrative merits
determination, arbitral award or decision, or civil judgment, as defined in guidance issued by the
Department of Labor, rendered against the offeror within the preceding 3-year period . . .”
The Blacklisting rule alone was estimated to cost businesses almost a billion dollars and more
than 2.1 million paperwork hours.
The Senate Republican Policy Committee has released a report on the total economic cost and
paperwork hours that just their first five CRA-targeted rules would have imposed. You can read
RPC’s description of those five rules and their projected costs here:
http://www.rpc.senate.gov/policy-papers/relief-from-harmful-regulations-week-two
Executive Branch Actions:
President Trump has signed a number of Executive Orders (EOs) in the regulatory arena. Not all
of them have as immediate and direct effect as Congressional CRA resolutions of disapproval –
Executive Orders are legally binding, but can be and often are reversed by subsequent
Administrations – so Congressional action is more significant. But the White House EOs will
certainly slow down the promulgation of new regulations.
Specifically, the Administration:

Issued an EO to roll back Obamacare by directing the Secretary of Health and Human
Services to “to interpret regulations as loosely as possible to minimize the financial
burden on individuals, insurers, health care providers and others”

Issued an EO instructing regulatory agencies that for every new regulation that is
promulgated, the agency should identify two regulations for removal, and mandating
that for 2017, “the total incremental cost of all new regulations, including repealed
regulations, to be finalized this year shall be no greater than zero"

Issued an EO that was interpreted as rolling back Dodd-Frank by establishing “core
principles” for financial system regulation

Issued EOs to advance the completion of the Keystone XL and Dakota Access
pipelines

Issued a memorandum to the heads of all Executive Agencies and Departments
instructing them to stop any new regulations pending review by the new
Administration
Department of Labor:
The President’s nomination for Secretary of Labor is moving slowing through the confirmation
process, delayed in part by the challenges the nominee faced in meeting the ethics requirements
that he separate himself from his business enterprises. The nominee, Andy Puzder, is the CEO
of CKE Restaurants, which owns Hardee's and Carl's Jr. Restaurants. Mr. Puzder is a Board
Member of the International Franchise Association, a trade association with which NAW
partners on a number of issues. His nomination is, not surprisingly, actively opposed by
organized labor’s allies, and it is certain that he would bring a much more business-friendly
focus to the Labor Department. A hearing on his nomination is scheduled for February 16th.
NAW both signed and helped obtain signatures on a letter to the Senate supporting Mr. Puzder’s
nomination. You can read that letter here:
http://www.politico.com/f/?id=0000015a-3706-d614-a5fa-7787a09d0001
A vote on the nomination could occur in the next few days, and calls to Senators urging their
support for the nomination would be helpful.
Please take a minute and call the offices of your two senators, and urge them to support the
Puzder nomination.
You can reach any Senator through the Capitol switchboard at 202-224-3121, and you can find a
list of all Senators and their individual office phone numbers here:
https://www.senate.gov/senators/contact/
A number of labor regulations are within the Labor Department’s jurisdiction, and we will be
closely watching to see what actions the new department takes. Specifically, both the Overtime
Rule and the Persuader Rule have been blocked by court-ordered injunctions, and we do not yet
know how the new Labor Department will handle the pending government appeals of those
injunctions.
The National Labor Relations Board:
There are currently only three members of the National Labor Relations Board (NLRB), two
Democrats and a Republican, with two vacancies. President Trump named the Republican
member, Phil Miscimarra, the Acting Chairman of the Board, removing the Obama-designated
Chair, but that leaves much yet-to-be-accomplished.
With two vacancies on the NLRB, President Trump can nominate two new members whose
confirmation would put the Board in GOP-majority control for the first time in many years. But
at this point it is not known if the Administration has candidates for those two vacant positions,
or when he will send nominations to the Senate for confirmation.
The filling of the Board vacancies is significant not only because it would create a 3-2 vote GOP
majority on the Board. Many of the Board’s most egregious actions over the previous 8 years
have been case decisions that reversed or significantly changed previous Board rulings and
precedents, and obviously many of those newly-minted precedents need to be reversed by a new
Board. However, under Board policy (though not statute), the Board will only reverse an
existing case precedent if there are three votes in favor of that action. When the Trump
Administration’s two nominees are confirmed, there will be the requisite three votes for
reversing precedents set by the Obama Board; until that occurs, much of a new Board agenda
will not be achievable.
Specifically, reversing the Obama Board’s decisions on Specialty Healthcare/micro bargaining
units, the Joint Employer Standard, and many of the newly-invented “protected concerted
activities” will have to wait for a new Board to be nominated and confirmed.
NAW and our coalition partners in Washington miss no opportunity to urge the Trump
Administration to move quickly on this critical matter.
February 2017